Duncan v. Petty's Heirs , 33 Ky. 223 ( 1835 )

Chief Justice Robertson

delivered the Opinion of the Court in this case — which was heard before Judge Ewing took his seat upon the bench.

This is a suit in chancery by Petty’s Heirs, against the Executors of their deceased father, and against their guardian and his sureties, for an account and distribution; and the principal question presented to this Court, is whether the Circuit Court erred in decreeing against the sureties and personal representatives of the guardian, (who died during the pendency of the suit,) a sum alleged to have been received by him, whilst guardian for the land of his wards in the state of Virginia.

It does not appear that the land was sold by the wards, or with their consent, or under the authority of any law, or decree, or judgment. Had it been so sold, and had the guardian received the proceeds, we should be inclined to the opinion, that he would have been liable, as guardian, for the amount; for, although his power and authority were local, he had a right to receive in this state, and it was his fiducial duty, when here received, to take care of, and account for, whatever money his wards were entitled to, from whatever place or source derived.

In asuitby wards agfinBtftriff* ther’s executor, dian,1 fo^arf"acsh™ld be'ather0 arate account taken with each die iributee and ward

But it is not necessary to decide whether, if he received the money as alleged, his sureties would be liable for it; because there is no sufficient proof that he ever received it. In his answer he denied that he ever received it, or any part of it; and against that denial, there is but one witness, and his testimony is far from being satisfactory, or altogether disinterested.

We are, therefore, of the opinion, that the decree, in this respect, cannot be sustained.

We are, also, of the opinion that the Circuit Court ou§ilt to have directed an account with the executors as well as with the reptesentatives of the guardian, and f°r each distributee, and each ward separately, according t0 established principles of Equity.

Wherefore, the decree is reversed, and the cause rernanded for further proceedings, and decree according to .... r ° - this opinion.