Thomas vs. Hardwick, Executor.

Therefore, for the better protection of the estates of orphans, and to prevent the delay of justice, it is enacted, that whenever it shall come to the knowledge of the court of ordinary that any guardian or executor or administrator shall waste, or in any manner mismanage, the estate of any orphan, or deceased person, or does not take due care of the education and maintenance of such orphans, (or "deceased person;" repeated, of course, by mistake,) according to his, her or their circumstances; or where such guardian, executor or administrator, or their securities, are likely to become insolvent; or where such executor, administrator or guardian shall fail to make returns within the time prescribed by law, &c.; such guardian, executor or administrator shall be cited to appear, and investigation had of their actings and doings, and the court is empowered to revoke the trust already confided, and pass such further order as it may think fit and expedient. And upon the revocation of such letters testamentary, letters of administration, and guardianship, it is declared that suits by or against either shall not for this cause abate; but the removal being suggested on the record, a scire facias may issue to make the successor of such removed person a party, at any time after the appointment and qualification.

In scanning the whole of this Act, would the thought ever occur that it was designed to confer any benefit upon a trustee who had been removed by the proper authority from his office for misconduct? To tolerate such a plea in abatement interposed by him, would be, most emphatically, to allow him to take advantage of his own wrong: Nemo allegans suam turpitudinam audiendus est. He is punished by the Ordinary for a breach of the trust confided to him, by the revocation of his letters, and he now seeks to shelter himself under that sentence of condemnation from liability already incurred; and that, too, without pretending by his plea that since his removal he has accounted with his successor for the effects with which he is chargeable. The Act of 1821 was not passed for the protection of delinquent trustees; it did not repeal the common law, but was intended to afford additional remedies, and especially to prevent delay in the pursuit of rights which had already accrued. It is argued that unless the proper representative is made a party to the action pending, no one else would have the means or the inclination to ascertain whether the demand sued upon was proper or not. This is true in all suits against executors de son tort, and where the attempt is made, as in the case under discussion, to charge the defendant personally, the instinct of self-preservation will be the most satisfactory guaranty against a wrongful recovery. We will not say either how far an administrator de bonis non might not make himself a party by interpleading, should it be deemed necessary for the protection of the estate.

When an improper administration has been revoked, (and the removal of an executor is strictly analagous,) a creditor may sue the displaced administrator, and he can only defend himself by showing that he has legally administered all of the assets, except those delivered over to the succeeding administrator or executor, and if any remain in his hands not delivered over, or if he has committed a devastavit by paying debts of inferior before those of a superior dignity, the creditor will recover.-6 Rep. 18, b. Packman's case; 11 Vin. Abr. 119, pl. 5 admr. of Wernick vs. McMurdo, 83, 84.

Such was the law previous to the Act of the General Assembly of

Thomas vs. Hardwick, Executor.

1845. It is suggested by a gentleman at bar that the passage of this statute was procured to meet a particular case, (not the one before us.) We know nothing to justify such an insinuation. It may have been dictated by the purest patriotism, and with an eye single to the public weal. As it is calculated, however, to delay creditors, legatees, and distributees, by compelling them to wait until the accounts between the administrator de bonis non and his predecessor, or the representatives of his predecessor, can be adjusted, at the end perhaps of a protracted litigation; to defeat the successful operations of their just claims, by requiring it to be done through the intervention of one whose interest might, and probably often would, be adverse to theirs and coincident with that of his nominal adversary; to lessen the ultimate security by multiplying the agencies through which the estate is to be settled; and to diminish the assets, by taxing commissions in favor of every successor through whose hands they should pass; we repeat that for these and many other reasons we should construe strictly the Act of 1845, did it become necessary in this case, as it obviously does not. The plaintiff's right of action had accrued previous to its passage against Hardwick, the executor. He had prosecuted his claim to judgment, charging the defendant personally with the debt. It is not in the power of the Legislature, we apprehend, to divest him of a right thus far perfected.

Clearly convinced, then, as we are, that an administrator, de bonis non, has no right at common law to call to account the representative of a deceased executor or administrator, for a waste or misapplication of the assets; that the Act of 1816 and 1845 do not embrace the present case; and that the right which the creditor had to proceed against a displaced executor or administrator for the goods wasted or converted, was not taken away by the Act of 1821; but that under it he might still proceed against the executor, or administrator, and reach the fund in his hands, as if his authority had not been revoked; or substitute the administrator, de bonis non, at his election; our judgment is that the court below erred in overruling the demurrer to the defendant's plea-especially as the plea does not aver as it should have done-that the defendant had duly administered all of the assets which came to his hands except what he had delivered over to the succeeding administrator. It is ordered, therefore, that the judgment below be reversed, and that the plaintiff in error do recover his cost.

Justices of the Inferior Court vs. Woods and Vason.

No. 15.-The Justices of the Inferior Court of the county of Morgan as a Court of Ordinary for the use of WILSON WOODS, plaintiff in error, vs. WILLIAM WOODS and JOHN VASON, defendants in error.

The Court of Ordinary has no power to discharge a security to a guardian's bond, from a liability which the guardian has already incurred.

In a suit against the discharged security on the guardian's bond, the plaintiff must prove affirmatively some default or act of malfeasance on the part of the guardian, prior to the discharge of the security, which in law would constitute a breach of the bond. Evidence of the bare reception by the guardian of his ward's estate, and nothing more, is insufficient to charge such security.

The discharged security of a guardian is only released from the future, not from the past, liabilities of his principal. The substituted security is liable, both for the past and future.

In this action the security pleaded and proved his discharge by the Court of Ordinary. It was therefore incumbent on the plaintiffs to reply by proof, some default or malfeasance on the part of the guardian amounting to a breach of the bond; for, although the Judiciary Act of Georgia, of 1799, abolishes special pleading-provides that the declaration and answer shall be sufficient to carry a case to the jury, without any replication or other course of proceedings-yet it does not dispense with the proof required by law on the trial.

This was an action of debt on a guardian's bond, tried before Judge Merriwether, in the Superior Court of the county of Morgan, at March Term, 1846.

On the 5th of December, 1835, the defendant in error, William Woods, was appointed guardian of Wilson Woods and Augustus Woods, orphans of James Woods, deceased, and gave bond with one John Woods and the defendant, John Vason, as his securities. On the 25th of November, 1839, he gave new bond, with John Woods and James Barfield as his securities, as guardian for Wilson Woods, (for whose use the above action was brought on the first bond,) conditioned that he should do and perform all the duties of guardian for the person and property of the said Wilson Woods as the law required, &c.; and was qualified anew in the Court of Ordinary. It appears that the following order was then granted by the Court of Ordinary (to wit) on the 25th of November, 1839:

"On application, William Woods gave new bond and approved security, as guardian of Wilson Woods, and it is ordered that John Vason be discharged from all further liability as security on the bond of William Woods as guardian of Wilson Woods and Augustus Woods."

William Woods, the guardian, and his securities on the second bond, become insolvent; John Woods died insolvent, and there being no representative to him, the suit was brought against the defendants in error, alleging a general breach of the conditions of the bond.

The defendant pleaded, specially, the giving of the new bond on the 25th of November, 1839, and the discharge of Vason by the Court of Ordinary from further liability as security on the first bond, (the subject of the suit,) in bar of the plaintiff's action.

The trial proceeded, and the counsel for plaintiffs after introducing the ond, and an exemplification from the Court of Ordinary, exhibiting a

Justices of the Inferior Court vs. Woods and Vason.

return made by William Woods, as guardian of Augustus Woods and Wilson Woods, acknowledging the receipt by him of $2,795 12 on the 25th of December, 1837, closed their case.

The defendants in error then tendered in evidence, in support of their defence, the new bond, and the records of the Court of Ordinary aforesaid of the discharge of the defendant Vason. To all which the plaintiff's counsel demurred, on the ground that the evidence tendered furnished no legal bar to the plaintiff's right to recover; whereupon the court below overruled the demurrer and admitted the evidence, deciding that the same was a bar to the plaintiff's right to recover, for the following rea

sons:

1st. Because the records of the Court of Ordinary, when taken together, did not show that Woods' guardian had ever been removed by the court, either on his own application, or that of his securities.

2d. That a fair interpretation of the record showed that new securities only had been given.

3d. That by the execution of the new bond by the securities, and the acceptance of it by the Court of Ordinary, the securities on the former bond were discharged, and the latter securities were alone liable.

To which decision in the court below, and the reasons given therefor, the plaintiffs in error excepted, and have assigned for error,

1st. The court below erred in permitting the exemplification of the record from the Court of Ordinary, offered in evidence by the defendants, to go to the jury, because the same contained no evidence, that the defendant Vason was ever legally discharged from his liability on said bond, on which the action was brought, inasmuch as no petition was ever exhibited to said Court of Ordinary, and no citation ever issued in terms of the law, previous to the passing of said order, discharging the defendant. Vason from further liability.

2d. Admitting that the order of the Court of Ordinary, and the giving of the new bond, did discharge the defendant Vason from further or future liability, the court below erred in deciding that it discharged him from his liability for funds, that the defendant Woods, had received as guardian, previous to the passing of said order, and previous to the execution of the second bond.

3d. The court below erred in deciding that by the execution of the new bond by the defendant Woods and his securities, and the acceptance of it by the Court of Ordinary, the securities to the first bond were discharged from all liability whatever; and that the securities on the last bond were alone liable for the acts of the defendant Woods, from the commencement of the guardianship:

4th. The court below erred in deciding that the order of the Court of Ordinary, discharging the defendant, Vason, from further liability, discharged him from any liability at all, either past or future.

5th. The court below erred in deciding that it was within the power of the Court of Ordinary to discharge the defendant, Vason, from liabilities he had incurred as security for Woods as guardian, previous to the passing of said order of discharge.

F. H. CONE, for plaintiff in error.

The discharge of Vason, it is presumed, took place under the provisions of the acts

Justices of the Inferior Court vs. Woods and Vason.

of the Legislature, although there is no evidence that any petition was made, or citation issued.-Prin. Dig. 228, 232, 237, 241, 245; Hotchkiss, 471. It does not appear from the records of the Court of Ordinary under what provisions of these statutes the new bond was taken.

The plaintiffs in error contend, that the taking of the new bond did not discharge the securities to the first bond, for any moneys then in the guardian's hands.-Shelton vs. Cureton, 3 McCord's Rep. 417; Trimmier vs. Trail, 2 Bailey's Rep. 480; Waterman vs. Bigham and Hudson, 2 Hill's Law Rep. 512; 1 Bailey, 334; Field vs. Pelot, 1 McMullan's Rep. in Equity, 370-1; Richards. Law Rep. 507; 6 Randolph Rep. 444; 1 Broekenbrough Rep. 256; 9 Wheaton, 720; 12 ib. 505.

The Legislature could not authorize the court to discharge the securities from a liability already incurred. It would impair the obligation of a contract.—4 Wheaton, 518; 6 ib. 131; 3 Mason C. C. Rep. 88.

DAWSON, REESE, and FOSTER, for defendants in error.

By the Court-WARNER, Judge.

This action was instituted on a guardian's bond, executed by William Woods as principal, and John Vason as security, containing the following condition: "Whereas, the said William Woods is this day appointed guardian of Wilson Woods and Augustus Woods, orphans of James Woods, deceased: now if the said William Woods do well and truly perform and demean himself as guardian as aforesaid agreeably to letters of guardianship bearing even date herewith and agreeable to law in such cases made and provided, then this obligation to be void, otherwise to remain in full force and virtue in law."

This action is brought for the use of Wilson Woods alone-the questions involved in this case are important, not only to the defendant, but to the community at large; and we have given them that consideration, which their importance would seem to demand. The guardian's bond to which Vason became security, was executed on the 5th of December,

On the 25th of December, 1837, William Woods, the guardian, charges himself in his return to the Court of Ordinary, with the reception of money belonging to his wards, to the amount of 2,795 12. On the 25th November, 1839, John Vason was discharged from his securityship on the first bond, and a new bond given, with John Woods and James Barfield, securities. It also appears from the record in this case, that William Woods, the guardian, and his securities on the second bond, are insolvent. The first ground of error assigned by the plaintiff, as to the fact of there being no petition, and citation to the Court of Ordinary, for the discharge of Vason, the security, prior to the granting the order of discharge, was virtually abandoned by the plaintiff's counsel in the argument, and, we think, properly abandoned; therefore, it is not necessary for us now to consider it. The rights and liabilities of the respective parties, growing out of the discharge of Vason, the security, by the Court of Ordinary, is the great question in this case, and one which we are free to admit is not altogether clear of difficulty.

Anxious, however, to establish a rule of decision for our future guidance in all similar cases, we have carefully examined the general principles of the common law, as well as the decisions of the courts in a sister State, where there is a statute, similar to our own, providing for the disPre of securities to administrator's and guardian's bonds.