Commonwealth v. American Bonding Co.

91 A. 938, 245 Pa. 535, 1914 Pa. LEXIS 913

Opinion

Opinion by

Me. Justice Elkin,

From no point of view can we regard this appeal as having any merit. A bond given by a guardian and approved by the court shall be deemed to be held in trust for all persons interested: Newcomer’s App., 43 Pa. 43. Even the court has no authority to release the bond with out the consent of all parties in interest: Com. v. Rogers, 53 Pa. 470. The judgment of the learned court below might very well be rested on the authority of the two cases just cited. The case at bar cannot be distinguished in principle from those cases, nor should it be, because the doctrine there announced is an aid to the wholesome administration of the law where trust estates are involved. In the present case the bonding company became surety on the bond of the guardian in the penal sum of $25,000, and this is the bond upon which suit was brought. The bond as executed was never surrendered or canceled by the court, nor changed by the parties in interest; The bond itself remains just the same as it was at the time it was signed by the surety. The bonding company never made any application to the court either to have the bond released, or reduced in amount, nor did it ask at any time that the guardian be required to give additional security. Under these facts it is difficult to see how the bonding company is in position to ask that it be released from a considerable part of its liability as surety on the ground that the guardian did some act to relieve it from its voluntary obligation. The guardian did make application to court to have the amount of the bond reduced on the ground that it was larger than necessary to protect the personal estate, but in this he was clearly mistaken and must have misled the court. There is no doubt that the will worked a conversion of the real estate, and that the entire estate which belonged to the ward must be regarded as personalty. The amount of the original bond was fixed upon this basis, and the bonding company undertook to insure a faithful accounting by the guardian of the entire trust estate. All that, is demanded now, and this is what the learned court below held, is that the surety be made answerable according to its undertaking. What the court did by way of attempting to reduce the bond at the instance of. the guardian, and without the consent of other interested parties, must be regarded as having been improvi dently done under the authority of the cases above cited. We are not considering a case in which the original bond was cancelled and surrendered, and a new security taken, with the consent of all interested parties and the approval of the court. Nothing done in the present case was sufficient to relieve the surety on the original bond, which is still in full force and effect, from the whole or any part of its obligation.

Judgment affirmed.