Duncan's Admr. v. Jenkins ( 1871 )

Opinion op the Court by

Judge Lindsay:

Tbis court by its decision in the case of Watts v. Pettit's Heirs. 1st Bush, 155, clearly recognizes tbe power of tbe county court under tbe provisions of tbe Act of March 10th, 1856., 1st Yol. Stanton's JR. S., 581, by requiring new bonds from statutory guardians to release tbe surety or sureties upon existing bonds from all liability on account of tbe same.

Palmer, for appellant. Gilbert & Johnston, for appellee.

In this case tbe guardian of tbe appellees upon bis own motion was allowed to execute a new bond for tbe express purpose of releasing Duncan from liability as bis surety upon bis original bond.

A new bond was executed and approved and accepted by tbe court and it is recited in tbe order 'itself, “That Samuel Duncan can be and be is hereby forever released from any further liability as one of tbe sureties in said bond.”

Tbe language of tbe statute is that “When tbe security of a guardian wished to be released as such, be shall apply to tbe county court,” &c., and it is insisted that because of tbe fact that in this case tbe application was made by tbe guardian, and not by tbe surety, that it does not come within tbe provisions of tbe statute and that Duncan’s representative cannot claim that bis intestate was absolutely released from liability, but only that tbe new bond was cumulative in its legal effect. We tbinlc that it may be safely assumed that tbe guardian made the application because of tbe fact that bis surety Duncan wished to be released, and this fact of itself brings this case clearly within tbe reason of tbe statute.

We are of opinion that tbe appellants exceptions should have been sustained as to tbe claim of tbe appellees, and tbe action of tbe court below is reversed and tbe cause remanded for further proceedings consistent with this opinion.