Eichelberger v. Gross.
1. A guardian of the person and property of a minor, having received, after giving bond, money belonging to his ward, and embezzled the same, the subsequent discharge of the surety in such bond, and the acceptance, by the probate court, of a bond with other surety, in lieu of the first bond, will not exonerate such surety in the first bond with respect to the money so embezzled, but lie will be liable upon the ground that the guardian failed to faithfully perform his duties.
2. The judgments and orders of the probate court, including the approval of partial and final accounts of guardians, import absolute verity, as between the parties thereto, and they cannot be contradicted or questioned collaterally ; but where a surety in the bond of a guardian is discharged before any account is filed, and a new bond, with other surety, is accepted in lieu of the first bond, and, before such substitution, the guardian of the ward embezzled, money of the ward received after the first bond was given, the fact that, subsequently to such substitution, the guardian files his first account, which is approved by the probate court, failing to show the receipt of the money so embezzled, will not bar an action by the person who was ward, on arriving at full age, against the surety in the first bond, if the guardian, in a subsequent account, charges himself with the money so embezzled; and parol evidence is admissible to show when it was received, and also when it was embezzled.
MotioN for leave to file a petition in error to reverse tbe judgment of the District Court of Crawford county.
July 26, 1872, John Gross was, by the probate court of Crawford county, appointed guardian of the persons and estate of William A., Martha, Thomas and Mary Gross, children and heirs of Frederick Gross, deceased, and on the same day the guardian gave bond in the penal sum of $10,000, with Jacob Gross and Isaac Eichelberger as sureties, conditioned to be void “ if the said guardian shall discharge with fidelity the trust aforesaid in him aforesaid, shall render an accurate settlement of his transactions, with a just account of the profits arising and accruing from the real and personal estate of his said wards? and shall deliver up the same to the court when thereunto required.”
*550The statute then in force (1 S. & C. '672), provided that the bond should “ be conditioned for the faithful discharge of the duties of said person as such guardian,” but further provided on the same page (§ 9) that no such bond should u be void or held invalid on account of any informality in the same.”
The duties of a guardian of the estate of a minor, as then prescribed by statute (69 Ohio L. 55), were, among other things, as follows :
“ First. To make out and file, within three months after his appointment, a full inventory, verified by oath, of the real and personal estate of his ward, with the value of the same, and the value of the yearly rent of the real estate; and failing so to do for thirty days after he shall have been notified of the expiration of the time by the probate judge, said probate judge shall remove him and appoint a successor.
“ Second. To manage the estate for the best interests of his ward.
“ Third. To render, on oath, to the proper court, an account of the receipts and expenditures of such guardian, verified by vouchers or proof, once in every two years.
“ Fourth. At the expiration of his trust, fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands.” ....
“ Seventh. To loan or invest the money of his ward in a reasonable time after he receives it, and the payment of the , money loaned or invested shall be secured by a mortgage on ' real estate of double the value of the money loaned, exclusive of buildings or other improvements, timber and minerals in or upon such real estate, or upon the purchase or pledge of the certificates of the funded debt of this state, or the bonds or certificates of the funded debt of the United States : Provided,, that said guardian shall in all cases be held to account for all premiums realized upon coin received by him as interest or otherwise. And if said guardian fail to loan or invest the money of his ward within such reasonable time, he shall account on settlement for such money and interest thereon calculated with annual rests.
*551“Eighth. To obey and perform all the orders and judgments of the proper courts touching the guardianship.”
On November 25, 1872, the guardian received for his wards and for a brother of his wards, who was of full age, the sum of five thousand dollars, being the amount of a policy of insurance issued by the National Life Insurance Company, insuring the life of the father of the wards in that amount. No inventory of this money or any part of it was made by the guardian, nor did he render any account with respect to it for three and one-half years after he received it, as hereinafter shown.
Of the money so received, John Gross invested $3,000 in the purchase of real estate in Crawford county, taking the title in his own name, the deed failing to show that the wards had any interest in the property. This real estate he incumbered with his own debts, and he subsequently sold the same, receiving the larger part of the amount agreed upon in Missouri lands, the title to which he took in the name of his wife, the deed failing to recite any interest of the wards in the lands. The other portions of the $4,000, the ward’s part of the $5,000, the guardian applied to his own use. So that, previous to September 10, 1873, John Gross had converted nearly or quite all of the $4,000, to his own use.
On September 10, 1873, on application of Eichelberger, John Gross was ordered by the probate court of Crawford county, to give a new bond as such surety; and on September 17, 1873, he gave such bond, in the penal sum of $10,000, with Daniel Stump and Jacob Gross as sureties, which bond was approved by the probate court; and thereupon the court ordered, “ that said Isaac Eichelberger, a surety upon the former bond of said John Gross, as such guardian, be and he is henceforth released upon said former bond of said John Gross as guardian as aforesaid.”
The statute then in force (1 S. & C. 674, § 18), provided as follows : “ Any surety of a guardian may, at any time, apply to the proper probate court to be released from his bond with such guardian by filing his request therefor with a judge of such court, and giving ten days’ notice to such guar*552dian, wbcn sucb court shall release such surety ; and if such guardian fail to give new bond, as by such court directed, he shall be removed and his letter susperseded, but such original surety shall not be released until such guardian so gives bonds, and such original surety shall be liable only for the acts of such guardian from the time of the execution of the orignal bond to the filing and approval by the court of such new bond.”
John Gross’ first partial account as such guardian was filed in the probate court on February 1, 1875, and, after having been advertised for the proper length of time, it was in due form approved by the probate court, that court finding that there was due to said John Gross, as such guardian, from his ward, William A. Gross, $83.28. No exception to the account was filed, nor was any appeal taken. In that account the guardian did not charge himself with or in any way account for the $4,000, so received by him for his wards.
On May 19, 1876, John Gross, the guardian, filed in the probate court his second partial account, in which he charges himself with having received, on November 2, 1872, said sum of $4,000. This account was approved by the probate court July 10,1876, abalance of $741.45 being found due from the guardian to his ward William A. Gross, and the guardian was ordered to account for the same according to law.
On March 7,1878, the guardian John Gross, filed his final account showing a balance due from him to William A. Gross of $1,017.01, including such insurance money. This account was approved April 22, 1878, and the guardian was ordered to pay the same to said William A. Gross according to law.
On the same day that John Gross filed his final account (March 7, 1878), he resigned as such guardian, which resignation was then accepted ; and on March 16, 1878, Daniel Stump above mentioned, was appointed guardian in place of John Gross; and said Daniel Stump gave bond as such guardian.
During the same year John Gross caused the Missouri lands to be conveyed to Daniel Stump, who was his surety and successor, as already stated; but the whole amount realized from the land was $300, which sum was deposited in court.
*553'William A. Gross became twenty-one years of age on July 31, 1878, and on March 29, 1879, commenced an action in the court of common pleas of Crawford county, against John Gross, Jacob Gross and Isaac Eichelberger, on the first bond of John Gross as such guardian. Issue was joined between the plaintiff, William A. Gross, and the defendant Eichelber-ger, by answer to the petition and reply to the answer, and on the trial there was a verdict and judgment in favor of the plaintiff and against the defendant Eichelberger for $890.42; and the district court, at the March term, 1884, affirmed the judgment. This motion is for leave to file in this court a petition in error to reverse those judgments.
Finley dé Eaton, and Paxton dé Warrington, for Isaac Eichelberger.
8. P. Harris, for William A. Gross.
Okey, J.
As the proceeds of the Missouri lands, amounting to about three hundred dollars, have been paid into court, the sureties of Daniel Stump are in no way liable to the plaintiff below, William A. Gross; and as John Gross had converted to his own use four thousand dollars, money of his wards, being the amount of a policy of insurance on their father’s life, before the guardian gave his second bond, the sureties in that bond are not liable to tire wards for the money or any part of it (State v. Sanders, 62 Ind. 562; State v. Page, 63 Ind. 209; Lowry v. State, 64 Ind. 421); it follows, necessarily (John Gross being insolvent), either that the sureties in John Gross’ first bond are liable for the amount, or that the wards are wholly without security or remedy with respect to it.
We entertain no doubt as to the liability of the sureties in the first bond. That instrument does not pursue the language of the statute, but by the terms of the act that is not material, and the bond, which is to be read as though the act of 1872 (69 Ohio L. 55 ; Rev. Stats. § 6269) had been in terms incorporated therein (Holt v. Whittier, 31 Ohio St. 475; Jewett v. Railway Co., 34 Ohio St. 601; Banks v. De Witt, ante, 263), *554is sufficiently broad to cover the conversion here shown, for the guardian failed to “discharge with-fidelity the trust,” and probably the bond is sufficient, even without such curative provision. And neither the new bond of the first guardian, nor the resignation of the first and appointment of the second guardian, nor the bond of the second guardian, had the slightest effect upon the liability of the sureties in the first bond, which became absolute by the receipt and conversion of the four thousand dollars by John Gross.
Rut it is urged that by the guardian’s first partial account, a definite sum of money was ascertained to be due from William A. Gross to him, and that to permit a recovery with respect to money received by the guardian and appropriated to his own use previous to filing that account, is to contradict the record. True, a partial account is conclusive unless attacked in the mode provided by statute ( Woodmansie v. Woodmansie, 32 Ohio St. 18), but this is only in respect to matters adjudicated therein (Schouler’s Dom. Rel. [2nd ed.] 495), and there was no adjudication in the first account ,,as to the insurance money. Besides, the first partial account was corrected in that respect by the second partial and the final accounts, which show that the money was received after the first bond was given and before the giving of the second bond ; and of this Eichelberger had no right to complain. Scobey v. Gano, 35 Ohio St. 550. The Ohio cases mainly relied upon by counsel, arising upon other-statutes or materially different facts (Favorite v. Booker, 17 Ohio St. 548; Lindsay v. Lindsay, 28 Ohio St. 157; Woodmansie v. Woodmansie, supra; Newton v. Hammond, 38 Ohio St. 430; and see 1 S & C. 677, § 31; Rev. Stats. § 6289), are not inconsistent with this view. Our conclusion is, that the embezzlement, by John Gross, of the money of his wards, did not leave the wards remediless, but that the sureties in the bond, which was in full force and effect when John Gross received the money and converted it to his own use, are liable, and that the judgments in the courts below against Eichelberger are right.
Motion overruled.