Pendexter & a. v. Cole, by Cate, Guard.
The guardian of a spendthrift cannot he joined as a party defendant with his ward, in an action of debt on a judgment recovered against the ward before he was placed under guardianship.
If the guardian of a spendthrift, having assets, refuses to pay a debt due ' from his ward, the creditor’s remedy is by an action on the guardianship bond.
Motion, by the plaintiffs, for leave to amend by making Cate, the defendant’s guardian, a party defendant, and that execution issue against him de bonis propriis. The action is debt on a judgment recovered in Maine by the plaintiffs against the defendant Cole in 1871. After the judgment was obtained, Cole moved to this state, and in February, 1889, was decreed a spendthrift; and Cate was appointed his guardian, and filed the inventory required by Gen. Laws, o. 186, s. 6.
The ward’s property consisted entirely of pension checks, that came payable to the guardian for the ward as a soldier in the late war, soon after the guardian’s appointment. The inventory showed the amount of the ward’s estate to be $1,345, and that the estate was solvent both at the time of making the inventory and at the time of the commencement of this action, August 27, 1889,— although at the last date the property had been largely changed from checks into a homestead, furniture, tools, and some other personal property connected with it, and that some of it had been otherwise expended in a manner that reduced the estate; still, sufficient remained to pay the ward’s debts, aside from the homestead. It did not appear that the guardian had license from the probate court to purchase the homestead, or the approval of the selectmen. The plaintiffs made a demand of payment on the guardian before bringing this suit. Since the commencement of the action the guardian has filed his account in the probate court, from which it appears he has expended all the funds of his ward, and that all the property of bis ward at the present time consists of the homestead, valued at $600.
F. Weeks, for the plaintiffs.
Beacham & Foote, for the defendant.
Clark, J.
No action can be maintained against a guardian personally for a debt of his ward. The guardian’s duty is to take care of the person and estate of his ward, collect his dues, pay his debts if he has sufficient assets, and protect his rights and interests generally.- G. L., c. 184, s. 3. The remedy for a breach of his duty is by an action upon his bond. Whether the ward’s property *557lias been judiciously and legally managed and invested by the guardian is a proper subject of investigation and inquiry upon the adjustment of the guardian’s accounts in the probate court, but it is not open to inquiry in a suit against the ward for the recovery of a debt. A creditor may compel a guardian to adjust his accounts, and if he has assets in his hands and refuses to pay a judgment recovered against his ward, it will be a breach of the condition of his bond, and the creditor’s remedy is by an action upon the guardianship bond. Davis v. Drew, 6 N. H. 399, 400; Conant v. Kendall, 21 Pick. 36.
Motion denied.
Smith, J., did not sit: the others concurred.