Ames v. Williams , 74 Miss. 404 ( 1896 )

Woods, J.,

delivered the opinion of the court.

The opinion of. this court on the former appeal in this case (Ames v. Williams, 73 Miss., 772), substantially disposes of the third and fourth assignments of error in the present appeal. These assignments are, in brief, that the chancery court erred in making annual rests, in stating the account of Patty’s administratrix, and in compounding interest, and in not allowing expenditures in excess of income collected during any one year.

Now, both assignments are clearly held by us to be without merit in the former opinion dismissing the other appeal. It was declared by us, that if, as is suggested, the guardian exceeded the income of the ward, the fact that a part of that income consisted of compound interest, even if that interest should not have been charged, would result in discharging the guardian from liability therefor, for certainly, under our statute, no expenditure above the income could be allowed, and the commissioner is directed to allow all proper expenditures to an amount equal to the income, of whatever it is composed. ’ ’ This leaves no ground for contention, as to these assignments, on the present appeal.

The. first and second assignments of error may be conveniently and properly considered together. By the first assignment it is alleged that the court below erred in sustaining the second exception to the final account of R. C. Patty’s guardianship, and, by the second assignment, error is predicated of the court’s action in directing the amount due on the note for $2,200, made by Patty to A. M. Williams, to be charged against Patty, guardian, as having been collected by him. The second exception to the final account of Patty’s guardianship raises this same question of charging Patty with the balance due on the $2,200 note.

That this note came into the guardian’s hands as such, that its maker was solvent, and that it could have been collected during Patty’s lifetime, had he made any effort to do so, is not disputable. We are at a loss to see why the appellants should not -be held liable to account to Patty’s wards for the uncollected balance of the note. They are equally liable for money which actually came into the guardian’s hands and for that which could and should have been collected by a faithful discharge of his duties by the guardian. The mere fact that the present guardian has resorted to a security given with the note to make its payment more certain, and the further fact that he has actually realized some part of the balance due on the note, 'by such resort, cannot and does not absolve from liability these 'sureties who have bound themselves for the faithful performance of his duties by the guardian, when it is shown that the guardian was derelict in not attempting to collect, as should have been done, a perfectly solvent credit until it had become worthless. If their principal had actually reduced the $2,200 to possession, his sureties would be liable, if not properly accounted for; and, if not actually reduced to possession when it was the guardian’s plain duty to do so, and when that might have been done, then, too, the sureties must respond. See McWilliams v. Norfleet, 63 Miss., 183, and cases therein cited. It is impossible to conceive of any other rule than that of holding the guardian and his sureties liable for losses sustained by the ward by reason of the guardian’s neglect, by timely action, to collect as it was his duty to do.

Affirmed.