Scovill v. Scovill, 33059

• Court: United States State Supreme Court of Kansas
• Writing for the Court: HUTCHISON, Justice.
• Citation: 62 P.2d 852,144 Kan. 759
• Parties: SCOVILL v. SCOVILL et al. RYAN v. SAME.
• Decision Date: 12 December 1936
• Docket Number: 33059,33060.

62 P.2d 852

144 Kan. 759

SCOVILL
v.
SCOVILL et al.

RYAN
v.
SAME.

Nos. 33059, 33060.

Supreme Court of Kansas

December 12, 1936

Syllabus by the Court.

Gratuitous surety on bond of trustee appointed by court, who was required to hold property subject to further order of court, held not liable to beneficiaries, where pleadings in suits by beneficiaries against trustee and surety failed to show that any further order had ever been made, since contract of gratuitous surety must be strictly construed.

Filing of motion by defendant to strike amended petition filed after overruling of his demurrer to original petition, from which ruling defendant appealed, held not to render appeal moot, where motion to strike was coupled with request to defer further proceeding until hearing on appeal.

Filing of answer to petition after overruling of demurrer thereto alleging that petition did not state a cause of action held not to deprive defendant of right to appeal from ruling on the demurrer.

The contract of an individual and gratuitous surety on the bond of a trustee appointed by a court will be strictly construed, and he will not be held liable where the trustee was required to faithfully perform the trust and hold the property "subject to the further order of said court," when the pleadings show that no such further order has ever been made.

Appeal from District Court, Harper County; George L. Hay, Judge.

Action by Martha Scovill against Addie Scovill and Grant Burton, and an action by Dora Scovill Ryan against Addie Scovill, Grant Burton, and another. From adverse judgments in each action, defendant Burton appeals.

Reversed, with directions.

See, also, 140 Kan. 588, 37 P.2d 1007.

E. C. Wilcox, J. Howard Wilcox, and Myrtle Youngberg, all of Anthony, for appellant.

Harry B. Davis, of Anthony, and Clark A. Wallace and Paul R. Wunsch, both of Kingman, for appellees.

HUTCHISON, Justice.

The appeal in each of these two cases was taken by the defendant Grant Burton from an order of the district court overruling his separate demurrers to the petitions of the plaintiffs. These separate actions were commenced by two sisters against their mother and her bondsman, Grant Burton, to recover on the bond given by their mother, as trustee appointed by the court for these two children, then minors, each for one-half of the Liberty bonds and war saving stamps, amounting to $1,600, placed in her hands for their benefit.

Each petition alleges the violation of the terms and conditions of the order of the court and of the surety bond and without first obtaining an order of the court, and thus breaching the order of court and the terms of the surety bond by the fraudulent use and disposition of such bonds and saving stamps and the proceeds thereof.

The appellant urges three grounds in support of his demurrers:

"1 Application of the statute of limitations

"2. May one of the beneficiaries maintain the action without the other being made a party?

"3. The petition does not show a violation of the court's order."

We shall first consider the last-mentioned ground. Attached to each of the petitions is a copy of the order of the court appointing the mother of the plaintiffs as trustee to hold such bonds and stamps in trust for these two children, which order required her to give a bond for the faithful performance of said trust. This decree was in a divorce action in which the mother was the plaintiff. The portion of the order to which special attention is directed in connection with this ground of the demurrers is as follows:

"*** That the receiver herein collect the assets of said estate in money, that are not already collected, except the liberty bonds and war saving stamps; that said liberty bonds of the value of Fifteen Hundred Dollars and said war saving stamps of the par value of One Hundred Dollars are ordered to be placed in the hands of said plaintiff as trustee for said minor children, which trustee shall execute a bond in the sum of Sixteen Hundred Dollars conditioned that she will faithfully perform said trust and hold said bonds subject to the further order of said court in trust for said children."

Appellant urges that the petitions do not state a cause of action in favor of these plaintiffs and against a gratuitous bondsman, without pleading the making of a "further order of said court" and setting forth the same, because even a breach of the conditions of the trust by the misuse of the bonds and stamps would not be a sufficient basis for compelling the bondsman to pay the value of the bonds and stamps to these plaintiffs or to pay them anything whatever without a further order of the court. In fact the petitions allege, as above stated, that no further order was made.

A copy of the bond given by the mother and Grant Burton is also attached to each of the two petitions. It recites the action of the court in the divorce suit in appointing the mother trustee for the two...