Bescher v. The State, ex rel. Hammann.

Deduct credits from charges leaves balance due from defendant to plaintiff`s estate, April 29th, 1873,..... ..... Interest on said balance from April

$4,971.38

29th, 1873, to 29th day of March, 1876. $1,449.96 Amount due, exclusive of credits......

..$6,421.34. "The court further finds, that, since April 29th, 1873, to April 9th, 1875, the defendant has paid the amounts following, which are proper credits in his favor against the estate of plaintiff, to wit:

Nov. 7th, 1874, taxes $34.04, one-half

"And the court further finds, that said plaintiff, before the commencement of this suit, demanded of said defendant that he should make a settlement of his trust as his dian, and pay to him the balance due him from said defendant, and defendant refused so to do.

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"The court finds, as a conclusion of law, from the above facts, that the plaintiff is entitled to recover of the defendant the sum of $1,093.15, with damages thereon to the amount of $109.31, and that the same be collected without stay of execution or benefit of the valuation or appraisement laws of this State."

Defendant excepted to the conclusion of law.

Motion for a new trial overruled. Exceptions. Appeal. The errors assigned, on appeal, are as follows:

1. The court erred in overruling the defendant's demurrer to the complaint, and to each paragraph thereof; 2. The court erred in sustaining the plaintiff's demurrer to the third, fourth and fifth paragraphs of the defendant's answer;

3. The court erred in the conclusions of law upon the facts as specially found by the court;

4. The court erred in overruling the defendant's motion for a new trial;

5. The court erred in rendering judgment against the defendant for $109.31, being ten per cent. damages on the amount found to be due from defendant to plaintiff';

Bescher v. The State, ex rel. Hammann.

6. The court erred in rendering judgment against the defendant without benefit of valuation or appraisement laws: and,

7. The court erred in ordering said judgment to be collected without stay of execution.

We proceed to consider the errors assigned:

1. The appellant claims that the suit is prematurely brought, that it will not lie till there has been a settlement of the estate, or the guardian removed, and that his sister Louisa, a younger ward of the same guardian, and still a minor, is a necessary party.

All these objections are answered by the case of Heady v. The State, ex rel., etc., 60 Ind. 316, and cases cited. We insert extracts from the opinion in that case:

"It is furthermore claimed by the appellants, that the relator could not maintain an action against the executors upon their bond, until he had procured a judgment, or otherwise exhibited and established his claim against them; and to this point the case of Eaton v. Benefield, 2 Blackf. 52, and some earlier Indiana cases, as well as some cases from other States, are cited.

"The case of Hunt v. White, 1 Ind. 105, may be cited upon the same point. But the earlier cases in Indiana, to that effect, were overruled by the case of The State v. Strange, 1 Ind. 538. See the cases of The State v. Railsback, 7 Ind. 634, and The State v. Hughes, 15 Ind. 104.

"It is now held, that the statute authorizing such suits dispenses with the necessity of having previously established such clam; and there was no necessity that the executors should have been removed, before bringing the action. Owen v. The State, 25 Ind. 371."

The rule on this point, as to suits on administrators and guardians' bonds, is the same.

"It is insisted, that, if the two sons of the testator, Thomas J. Heady and the relator, could maintain an ac

Bescher v. The State, ex rel. Hammann.

tion at all against the executors, for a failure to appropriate the interest on the specified money to their education, the action must be joint, in favor of both of them; and that an action can not be maintained on the relation of one alone.

"We do not think that the right of the two sons was a joint right, but a several one. Perhaps, in some actions, for some purpose, they might have joined; but it is clear, as we think, that their rights were several, in the very nature of the case." Colburn v. The State, 47 Ind. 310.

It may properly be here observed that the guardian of Louisa, the infant ward, was a party defendant to the suit. If the guardian's accounts have not been so kept as to protect him, he must answer to the wards severally, at the proper time, for the amount due them.

The complaint was sufficient, and the proper parties were made to the suit.

2. Error in sustaining the demurrers to the third, fourth and sixth paragraphs of answer.

What we have said upon the first assignment of error shows that the court did not err in its ruling on the demurrer to the third paragraph of answer. This paragraph is pleaded upon the theory that action can not be brought upon the bond till the estate is settled, etc., or the guardian has been removed.

The fourth paragraph relies upon the current settlements prior to the final settlement, made by the guardian with the probate court, as conclusive in a suit upon his bond, charging mistake, negligence, waste, and loss to the trust estate thereby. Such settlements are not conclusive. The State v. Wilson, 51 Ind. 96; Johnson v. McCullough, 59 Ga. 212.

These cases decide, also, that there was no error in the admission of the testimony set forth in the bill of exceptions, showing incorrectness in the vouchers in the current settlements of the guardian, prior to the final settlement.

Bescher v. The State, ex rel. Hammann.

The sixth paragraph is of the same character. It sets up what we may denominate interlocutory orders, not a final settlement. It also sets up that the appellant received a worthless note from the administratrix of the estate of Hammann, deceased, which note she had taken upon a loan of the money of the estate by her, and which the appellant received without making, so far as appears, any inquiry as to its validity, and charged himself with it as money, and now asks to be credited therewith, as worthless, in his account as guardian, after the time has gone by when the sureties on the bond of the administratrix would be liable for her default.

The court did not err in sustaining the demurrer to this paragraph. Aside from the question of negligence, which seems to be against the defendant (appellant), we are satisfied the appellant violated his duty as guardian in receiving said note, and that he is now liable for its amount in cash. He shows no just cause for being credited with its amount. It was the duty of the administratrix to make final settlement of the estate, and to account for and pay over in cash any surplus remaining after payment of debts, etc. 2 R. S. 1876, p. 543, sec. 137.

But section 114, p. 536, 2 R. S. 1876, provides:

"If, at the time of final settlement, all the claims against such estate, except legacies, be paid, and there remains. due such estate any uncollected claim, if any legatee or heir whose share does not exceed the amount thereof will accept it in payment of so much of his share, the same shall be assigned or delivered to him by the executor or administrator, and the estate shall be finally settled."

The legatee or heir must, of course, be an adult, to enable him to accept; and that action of the court could not validate what the statute did not permit. There is no provision, so far as we are advised, authorizing a guardian to