Tudhope v. Potts

• Decision Date: 06 May 1892
• Citation: 91 Mich. 490,51 N.W. 1110
• Court: Michigan Supreme Court
• Parties: TUDHOPE v. POTTS.

51 N.W. 1110

91 Mich. 490

TUDHOPE v. POTTS.

Supreme Court of Michigan

May 6, 1892

Error to circuit court, St. Clair county; ARTHUR L. CANFIELD Judge.

Action by Nettie I. Tudhope against Lewis Potts. Judgment for defendant. Plaintiff brings error. Affirmed.

William M. Cline and Albert McCall, for appellant.

Joe W. Avery and A. E. Chadwick, for appellee.

MCGRATH J.

The sole question here is whether suit can be maintained against a surety upon a deceased guardian's bond by the ward after attaining her majority, in the absence of an accounting. On the death of plaintiff's father, her mother, Frances E. Potts, was in May, 1870, appointed as her guardian, filing her bond with her father, the defendant, as surety. The guardian received $775 from the estate of the father of her ward on account of the infant; but she filed no inventory, and made no report to the probate court, but died on November 17, 1876. In June 1889, plaintiff became of age. Administration was then had upon the guardian's estate. Plaintiff proved a claim amounting to $1,460.28 before commissioners on claims, which was the only claim presented; and the administrator paid to her the sum of $543, which exhausted the estate. This suit is brought to recover the balance. The court took the case from the jury, directing a verdict for defendant, and plaintiff appeals.

Plaintiff was less than two years old when her mother was appointed her guardian, and it must be presumed that she remained under the care of her mother until her mother's death, some six years and a half after the appointment as guardian. The claim allowed by the commissioners makes no provision for the care of said minor during this period, but charges the guardian's estate with interest from the date of the receipt of the money. It is well settled that, save in exceptional instances, a surety upon a guardian's bond cannot be held liable until there has been an accounting before the proper tribunal, nor can an accounting be had before commissioners on claims so as to bind the surety or in a suit upon the guardian's bond. It was held in Gott v. Culp, 45 Mich. 265, 7 N.W. 767 that "a guardian's accounting is an equitable, and not a legal, proceeding. It involves, not merely items of debit and credit, but also consideration as to the propriety of charges and investments, and as to the allowance of compensation, with which a jury cannot meddle. The statute in such cases does not contemplate a general trial or general verdict." In Chubb v. Bradley, 58 Mich. 268, 25 N.W. 186, the same doctrine was reasserted. In Welch v. Van Auken, 76 Mich. 464, 43 N.W. 371, it was held that the administrator of the ward's estate had a right to sue upon the guardian's bond; the amount owing the estate having been fully adjusted and determined in the probate court. In Grady v. Hughes, 80 Mich. 184, 44 N.W. 1050, it was held that the liability of the sureties upon an administrator's bond did not arise until after the default of their principal was fixed. The facts in Schlee v. Darrow's Estate, 65 Mich. 362, 32 N.W. 717, makes that an exceptional case. The guardian, having been cited to appear in the probate court and render an account, failed and refused so to do, and was discharged. The trial court found that no support, education, or maintenance had been provided by the guardian for his wards, and no part or portion of the estate was expended by him on their behalf or for their benefit, but that the whole of the estate was appropriated by the guardian to his own use. The record of the probate court showed the items which made up the account, and expressly stated that those items were received by the guardian for the estate of the infants. After the guardian's refusal to avail himself of the power which the court had to allow him such compensation as he was entitled to, if...