Paine v. Jones

• Court: Wisconsin Supreme Court
• Writing for the Court: MARSHALL
• Citation: Paine v. Jones, 93 Wis 70, 67 N.W. 31 (Wis. 1896)
• Decision Date: 14 April 1896
• Parties: PAINE ET AL. v. JONES.

93 Wis. 70

67 N.W. 31

PAINE ET AL.

v.JONES.

Supreme Court of Wisconsin.

April 14, 1896.

Appeal from circuit court, Dane county; Robert G. Siebecker, Judge.

Action by Ida Jane Paine and others against Burr W. Jones, as executor of the last will of Simeon Mills, deceased. From an order sustaining a demurrer to the complaint, plaintiffs appeal. Affirmed.

This was an action brought against the sureties on a guardian's bond, for breach of the conditions thereof, in that the guardian failed to pay over the amount found due from him on the settlement of his final account. The youngest child arrived at his majority on the 29th day of June, 1885. The guardian, without fault on the part of the cestuis que trustent, did not settle his accounts, either with them or with the proper court, until October 4, 1894. This action was thereafter commenced by appellants. The complaint sets forth facts sufficient to constitute a cause of action, unless the bar of the statute (section 3968, Rev. St.) applies. A demurrer was interposed to the complaint on the ground, among others, that the action was not commenced within the time limited by law, on which ground the demurrer was sustained, and plaintiffs appealed.Erdall & Swansen, for appellants.

Olin & Butler, for respondent.

MARSHALL, J. (after stating the facts).

The sole question involved here is, what is the meaning of the term “discharged,” as used in section 3968, Rev. St., which provides that “no action shall be maintained against the sureties on any bond given by any guardian unless it be commenced within four years from the time the guardian shall have been discharged”? As applied to the facts of this case, it is contended on the part of the appellants that the guardian is not discharged, within the meaning of the statute, till his final accountis settled with the proper court; while, on the part of the respondent, it is claimed that the guardian is discharged when the ward arrives at the age of 21 years. Similar statutes exist in Michigan, Massachusetts, Mississippi, Texas, Vermont, and other states; and, as clearly shown in the briefs of counsel, there is a conflict of decisions on the subject here presented. The statute seems to have originated, or been first adopted in this country, in the state of Massachusetts, where it is first found in the Revised Statutes of 1836 (chapter 79, § 26), since which time, without material change, it has continued a part of the law of that state. Michigan adopted substantially the same statute from Massachusetts. Campau v. Gillett, 1 Mich. 416; Rev. St. 1838, pt. 2, tit. 7, c. 5, § 25. And, without material change, it has since continued to be the law of that state. It was adopted by this state from Michigan in 1849, and became section 30, c. 80, of the First Revised Statutes, and, from that time on to the present, with some slight changes (not affecting, however, the question here involved), it has continued to be the law, and it now a part of section 3968, Rev. St. This is, in brief, the history of the statute under consideration. Neither in Massachusetts nor Michigan, prior to its adoption here, had the particular language under consideration received judicial construction by the courts of those states. Therefore this court is not bound to follow any subsequent interpretation there given, but may adopt such interpretation as seems to be most in harmony with the legislative intent. Rowan v. State, 30 Wis. 129;Hogan v. State, 36 Wis. 226. Nevertheless, the determination of the question by the highest judicial tribunals of Massachusetts and Michigan, adhered to for a long term of years, under the circumstances, should be followed, unless it clearly appears that some other interpretation of the statute is more consistent with reason, and will better effectuate the intent of the lawgivers. In Loring v. Alline, 9 Cush. 68, the supreme court of Massachusetts had this subject under consideration for the first time. To be sure, the real question then was whether the death of the guardian operates as a discharge, within the meaning of the statute, so as to set the period of limitation running; but it necessarily involved a judicial determination of the meaning of the word “discharged,” as used in the statute, and the conclusion was reached that such term is synonymous with “termination of the guardianship.” Shaw, C. J., delivering the opinion of the court, said: “The court are of the opinion that by the term ‘discharge,’ in this statute, is intended any mode by which the guardianship is effectually terminated and brought to a close, either by the removal, resignation, or death of the guardian, marriage of a female guardian, or arrival of the minor ward to the age of twenty-one, or otherwise.” To the same effect is McKim v. Mann, 141 Mass. 508, 6 N. E. 740, where Allen, J., speaking of the legislative intent, said, in effect, that it was not the policy of the legislature to keep the sureties on the guardian's bond liable for an indefinite length of time; the language of the statute is explicit; the period of limitation dates from the time of the discharge of the guardian (i. e. the termination of the guardianship by death of the ward, his arrival at the age of twenty-one, or otherwise), and, if no right of action accrues within the statutory period of four years from such discharge, for the want of the necessary preliminary steps, that is the fault or misfortune of those interested in the estate. In Probate Judge v. Stevenson, 55 Mich. 320, 21 N. W. 348, the above interpretation was followed. The question arose on a different state of facts than in the...