Blauser v. Diehl , 1879 Pa. LEXIS 257 ( 1879 )

Mr. Justice Gordon

delivered the opinion of the court,

The court refused to charge the defendants, sureties of John H. Myers,-.guardian of Savannah I. Hartzel and Lebright E. Hartzel, for the default in his account of the proceeds resulting from a sale of the real estate of his wards, under the order of December 21st 1865.

This, we think, was right. A guardian has, by virtue -of his appointment, no power to alien the land of the minor or minors of whom he has charge; that power is conferred by statute, and only under and subject to prescribed conditions. It is a power entirely separate and distinct from that conferred by the appointment, the latter embracing only the management of the minor’s realty. The statute under which these proceedings were had, requires the court, before it, confers such new power upon the guardian, to see that he executes a bond, with sufficient sureties, conditioned for the faithful appropriation of the proceeds of the proposed sale. Thus we have a ■ collateral provision complete in itself and designed to be operative in cases not embraced in or contemplated by the original appointment. It thus necessarily results that one who becomes surety for a guardian, does so in view of the duties and obligations which the law then imposes upon his principal, and with the knowledge that, should a sale of land become necessary, with the grant of new power, required for that purpose, new and ample security will be provided. 'The sureties of the guardian are liable for all moneys or property that may come into his hands undér the original power, and we therefore held them to such liability where money came into his hands from proceedings in partition: Lloyd v. The Commonwealth, 35 Leg. Int. 171. But in such case there is no new power conferred upon the guardian; he takes by virtue of his original appointment.

In this, then, is the distinction; in the one case, the guardian takes the property by virtue of his original power; in the other, only by virtue of a new power, conferred by the order of sale, and this also distinguishes the responsibilities of the two classes of sureties; they are independent and their obligations are distinct.

The case of Beale’s Executors v. The Commonwealth, 17 S. & R. 392, though depending upon an administration bond, is, nevertheless, parallel to the one in hand. Both real and personal estate are, in Pennsylvania, assets for the payment of debts; reasoning from this axiom, the court below, in the case cited, held, that the sureties in an administration bond were responsible for the proceeds of real estate sold by order of the Orphans’ Court. But, in reversing the case the Supreme Court, by Rogers, J., say: “The bond is usually taken in double the amount of the goods and chattels which properly form the inventory, and of which the real estate constitutes no part, and that no surety considers himself answerable for the value of the land. That the bond required by the act justifies this construction, since the condition only requires a proper inventory of the goods and chattels of the estate and a just and legal disposition of them. That the interest of the estate requires nothing more, for it is not certainly known that the land will be wanted for the payment of debts, for though the lands are assets in the administrator’s hands they are so sub modo only, and when a sale becomes necessary and is ordered, sufficient security must be taken from the administrator for the faithful execution of the powers thus committed to him.” Every word of this reasoning can as well be applied to a guardian. His bond is conditioned only for the proper management of the property and estate of the minor under his care, and for its return upon the order of the court, and his bondsmen have no reason to believe that they -will be responsible for a sale of real estate which the guardian has no right to make. Such real estate is not assets in his hands for the maintenance of his wards, but the rents, issues and profits thereof only; it is not certainly known that a sale of land will become necessary, or that the court will order it; and, finally, if such sale is ordered, sufficient security must be taken to secure the proper disposition of the proceeds thereof. Such then being the accurate parallelism of the two cases, the one may well be permitted to rule the other, especially as, in this way, we the better reach the justice and equity of the case in hand.

The judgment is affirmed.