Rowan v. Decell ( 1903 )

Tbuly, I.,

delivered the opinion of the court.

The bill of complaint herein charges that Mrs. M. 33. Lamb’, was, in the year 1884, appointed guardian of the minor heirs, of 0. W. Hicks, deceased; that she'qualified as guardian by giving a bond, with appellant, E. A. Rowan, and one other, as sureties thereon; that Rowan was the son-in-law of Mrs. Lamb, and acted as her general agent; that, as such agent, he received of the estate belonging to said minors certain personal property, the proceeds of an insurance policy and the rents of certain real property, aggregating the sum of about $5,000; that, instead of applying this to the use and benefit, or support of tbe minors, or reporting it to tbe proper chancery court, be appropriated tbe same to bis own use, with tbe exception of about $600, wbicb was paid over to said guardian, and by ber expended for tbe maintenance and support of ber said wards ; that Mrs. Lamb, tbe guardian, died on December 25, 1890, never having filed an annual or final account of ber said guardianship; that when tbe Iiicks heirs became of age, appellee was appointed administrator of tbe estate of tbe decedent, M. B. Lamb, and, as such, was required to file a final account of said guardianship for bis intestate; that, by a proper proceeding, on tbe 16th day of October, 1902, a decree was rendered in said guardianship matter showing a balance due to tbe said wards of $7,455, and a final decree was rendered against tbe estate of the said guardian, Mrs. M. B. Lamb, for said sum. But tbe bill does not state whether or not tbe said decree has been paid and satisfied. The bill further charged that tbe said Mrs. Lamb at no time bad any of tbe funds or property of said guardianship estate in her possession, except as collected by the appellant, Rowan, as her agent, and that she depended on him to file the necessary accounts as required by law, and this he promised, but failed to do. To this bill of complaint appellant demurred, and, the demurrer being overruled, appealed.

If the facts stated be true, it is manifest that the appellant, Rowan, still owes the moneys collected by virtue of bis said agency. But tbe bill of complaint fails to show definitely to whom the money is legally due, or to whom Rowan should now account. If tbe decree in question against tbe estate of Mrs. M. B. Lamb, on account of her said guardianship, has been paid by said estate, then the moneys collected by Rowan and appropriated to his own use, now, by operation of law, belong to this ap-pellee as administrator. But if the decree has not been Settled by the estate of tbe guardian then this money belongs to tbe heirs of C. W. Hicks, who are now adults. Inasmuch as the bill of complaint herein failed to shoAv to whom the money was le-gaily due, and as tbis was a necessary averment, so that Rowan might not be sued twice for the same subject-matter, the demurrer should have been sustained. So far as the bill of complaint shows, said decree is unsatisfied, and Rowan is still liable to be sued as a surety by the Hicks heirs on the guardian’s bond, and in that suit be compelled to respond in damages for whatever sum might be legally ascertained to be due to the estate by the said guardian. Patty v. Williams, 71 Miss., 837, 15 So. Rep., 43. Under the facts set out in the bill of complaint, Rowan owes either the estate of Lamb, or the Hicks heirs, but the bill must show, by sufficient and definite averment, to whom the money is due. “The person legally entitled to receive the money, and who alone can give the necessary acquittance to the debtor, is the person legally entitled to prosecute the suit.” Cocke v. Rucks, Guardian, 34 Miss., 105.

The decree of the chancellor is reversed, and the cause remanded, and the■ demurrer sustained, ivith leave granted the ap-pellee to amend his hill within sixty days of the 'filing of the mandate in the court below.