Woodbury v. Hammond , 54 Me. 332 ( 1866 )

BARROWS, J.

What is the position voluntarily assumed by one who places his name as surety upon a guardian’s bond to the Judge of Probate?

He undertakes and promises on his own personal responsibility, and for the more perfect protection and security of the ward, that the individual appointed as guardian, among other things, will faithfully discharge his trust, and will render just and true accounts of his guardianship when by law required.

v Can the surety, then, be heard in that forum at every step of the proceedings, or upon a final adjustment of the guardian’s account, to allege that the accounts, which he himself has promised shall be "just and true,” are not so? Is he at liberty thus to intervene for his own security, necessarily creating expense to those for whose security in this very respect he has placed his name upon the bond? Not at all. The question whether he has sufficient confidence in the integrity, accuracy and responsibility of the guardian whose surety he becomes, to abide and be responsible for his doings in the execution of his trust, is to be settled by the surety with himself before he assumes the position. When he has executed the bond he has made himself individually responsible to the Judge of Probate and those interested in the ward’s estate, for the faithful and correct discharge of the guardian’s duty, and he, at least in that forum shall not bo heard to question it. It is upon the good faith and pecuniary responsibility of the party, whose surety he is, that he must rely. If he is doubtful about these, he may require security from his principal for his own indemnity, before signing the bond. If, by his intervention as surety, an improper person has been imposed upon the Probate Judge in a position of trust, it is to that person and his estate that he must look for indemnity from any consequent loss to himself. For all errors, omissions, neglects and mistakes of that person he has agreed to be and must be held to be responsible. If there has been a fraudulent surcharge in the guardian’s account to the detriment of the sureties, the proceedings in probate are so far vitiated by the fraud, that the sureties in a suit upon the bond against them, in a common law court, are at liberty to allege and prove the fraud in defence. Baylies, Judge, v. Davis, 1 Pick., 206.

But, practically, it would rarely happen that a man could be found, at once so foolish and so base as to assume a fictitious liability that must both immediately and ultimately rest upon himself, in order to fix a contingent responsibility upon those who had become sureties for his fidelity. And where a palpable error of any importance in an account is pointed out, a refusal to rectify it by a readjustment would go far to establish fraudulent collusion between the guardian and ward, which would relieve the sureties altogether. When errors in probate accounts are discovered, upon proper proceedings had in Probate Court, they may always be corrected upon the settlement of a subsequent account. Even when finally settled in the Supreme Court of Probate, application may be made in that Court for a rehearing, if injustice has been done. Baylies, Judge, v. Davis, ubi supra.

It is not then necessary to the safety of the surety that he should have the right of appeal from the decree of the Probate Judge, and the power, in the hands of a timid or distrustful person, might unjustly burden the estate of the ward with extraordinary and useless expense. Nor is it conceived that the right would be one of much practical utility, inasmuch as these accounts are seldom settled in the presence or with the knowledge of the sureties, and the state of them is not often brought to their knowledge until long after the time within which an appeal should be claimed has elapsed.

But the right is to be determined, after all, not by considerations of propriety or expediency merely, but by construction of the statute conferring the right of appeal in such cases. It has long been settled that a party can be considered " aggrieved,” so as to be entitled to an appeal, only when the decree operates upon his property, or bears upon his interest directly.” Deering v. Adams, 34 Maine, 44, and cases there cited. The interest of the surety is only contingent upon the non-payment, by his principal, of the sum with which the principal, as guardian, stands charged. The surety has no interest whatever in the property, and can be affected only indirectly by the decree, the immediate liability being upon the accounting party, who cannot be presumed to be so neglectful of his own interest as to fail to appeal in proper cases. As we have already seen, the surety is amply protected in another forum, in case the parties directly interested collusively claim to charge him for more than is justly due. The appeal, then, should be dismissed as improvidently claimed by a party who, according to the settled construction of the statute, cannot be considered as aggrieved by the decree.

But the questions raised by the appeal, being such as may probably arise in other cases, it may not be amiss to remark, that we see no reason to doubt the correctness of the conclusions reached by the Probate Judge, in any respect.

The objection to the jurisdiction of the Judge was probably founded upon the fact that the residence of the guardian and ward was in Danville, now included in the county of Androscoggin, and the appointment of the administra-trix on the estate of the guardian issued from the Probate Court in Androscoggin; but, by § 5 of c. 60, of the laws of 1854, establishing that county, it is provided that, " all business pending in the * * '* Probate Courts * * * * in either of the four counties ” out of which the new county was carved, "of which this county would have jurisdiction, shall be completed in said counties, the same as if this Act had not passed.” And, although, by an additional Act, (chap. 87 of the laws of 1854,) matters pending in the S. J. Court and court of county commissioners, which would have fallen within the jurisdiction of the county of An-droscoggin, if it had been established when the processes originated, were transferred with the papers pertaining thereto, no such provision was made with regard to probate matters, and the guardianship, in this case, having originated long before the separation of Danville from the county of Cumberland, the business thereof was by law to be completed in that county.

That the personal representative of a deceased guardian, appointed by the court having jurisdiction of his estate or will, is the proper person to settle his account of his guardianship, admits of no doubt. The practice is sanctioned by long and consistent usage, as well as natural and obvious propriety. No other person can be supposed to have such means for rendering an account that will do justice to all concerned, whether directly or remotely interested.

Nor does the fact that the estate of the deceased guardian has been represented insolvent, before the account was rendered, make any difference in the course of proceedings. The liability to account, unless discharged by the ward after arriving at full age, continues until a final account has been rendered and accepted. Neither the insolvency oí the guardian or his estate, nor the lapse of six years after the ward arrives at the age of twenty-one, will operate as a release from that liability, or absolve the guardian or his personal representative from the duty to account.

The Probate Judge carefully discriminated, as ho should do, between the transactions arising between the guardian and ward, after she became of age, and those pertaining to the guardianship, and took cognizance of the latter only.

It rarely happens that an account can be settled precisely at the day when the ward attains his majority, and it follows that the final account must be adjusted subsequent to that period, or be left incomplete. It is no objection that the account is settled after the ward has become of age, so long as it embraces nothing except what accrued during the minority.

The question as to the effect of the statute of limitations, manifestly could only properly arise in a suit upon the bond, brought in a common law court.

No complaint is made that the Judge of Probate erred as to the rules and principles to be observed in the making up of the account, and they seem, upon reference to his opinion filed with the papers in this case, to have been carefully and accurately laid down.

Indeed, it is nowhere suggested by the appellant, that the estate of the guardian stands charged with any sums for which it is not justly accountable. His objections are, — to the jurisdiction of the Court, — to the rendering of an account after such a lapse of time from the expiration of the ward’s minority, by the administratrix of the guardian, and after a representation of the insolvency of the guardian’s estate.

None of these objections are tenable.

Appeal dismissed with costs.

AppletoN, C. J., Keot, WaltoN, DaNEOKth and Tap-ley, JJ.,' concurred.