Dunn v. Clinghan

47 So. 503, 93 Miss. 310

• Court: Mississippi Supreme Court
• Decided: October 15, 1908
• Status: Published

Opinion

Whitfield, C. J.,

delivered the opinion of the court.

This case is to be resolved by deciding the question whether the five-year statute of limitations provided by Code 1892, § 2738, being the same as Code 1906, § 3098, bars this action against the guardian and the sureties on his bond. It is to by noted, in this case, that no annual or final account was ever filed b^the guardian. Code 1880, § 2107 reads, so far as this point is concerned, as follows: “The powers and duties of every testamentary or other guardian, over the person and estate of his ward, shall cease and be determined when such ward shall either arrive at the age of twenty-one years, or be lawfully married, being over the age of eighteen years, and, in either event, the guardian shall forthwith deliver to the ward all the property, of every description, of said ward, in his hands, and on failure shall be liable to an action on his bond,” etc. This is identical with the provisions of Code 1906, § 2442, and Code 1892, § 2223. The-section under which the claim is said to be barred is Code 1892, § 2738, now Code 1906, § 3098, both of which sections read as-follows:

“Actions against Guardians or Their Sureties. All actions against a guardian and the sureties on his bond, or either of them, by the ward, shall be commenced within five years next after the ward shall have arrived at the age of twenty-one years, and not after.”

These two sections, last mentioned, have never been construed by this court up to this time, but Code 1880, § 2107, identical with Code 1906, § 2442, and Code 1892, § 2223, was construed by this court in the case of Nunnery v. Day, 64 Miss. 457, 1 South. 636, and that construction was reaffirmed by this court in the case of Bell v. Rudolph, 70 Miss. 234, 12 South. 153. In the first-named case the ward, Robert H. Day, had sued the guardian and surety on his bond, and there, just as here, the plea of the statute of limitations was invoked; in that case the statute invoked being the seven-year statute of limitations. The court said: ‘“Our statute provides that the powers and duties of a guardian over the person and estate of his ward shall cease and determine when the ward arrives at age or marries, and that in either event the guardian shall forthwith deliver to the ward all the property of every description in his hands belonging to the ward, and that on failure to do so suit may be brought on the guardian’s bond. While suit may be brought on the bond of the guardian for failure to comply with the law in this respect, the statute does not relieve him from making final account and settlement with the court; but, on the contrary, it requires that such account and settlement shall then be made. A¥hen the ward reaches majority or marries, the functions and authority of the guardian over the person and estate of the ward for the future ends, and his obligation to make final account and settlement for the past begins, and he remains guardian for such purpose, and the statute of limitations does not begin to run in favor of him, or the sureties on his bond, until this is done. Alston v. Alston, 34 Ala. 15. The general rule is that the office of a trustee ceases only with the execution of his trust, and the duty of a guardian, as trustee, to account and settle, continues until he has done so and is discharged by order of the proper court. Henderson v. Winchester, 31 Miss. 290; Davis v. Cheves, 32 Miss. 317; Denson v. Denson, 33 Miss. 560. In cases of direct technical trusts, such as exist between guardian and ward, the statute of limitations does not run against the cestui que trust in favor of the trustee. The relations and privity between them are such that the possession of the trustee is the possession of the cestui que trust, ahd mere neglect of the trustee to perform the trust which he has assumed does not operate as a bar against the claim of the cestui que trust. Angeli on Limitations, par. 166; 2 Perry on Trusts, § 863; Jordan v. McKenzie, 30 Miss. 32. The guardian in this case might have been compelled to acount, after it became his duty to do so, at the instance of the sureties on his bond, as well as by his ward, and the failure to compel the accounting was as much the negligence of the sureties as of the ward. Newton v. Hammond, 38 Ohio St. 430; Chapin v. Livermore, 13 Gray (Mass.) 561. The statute of limi+ations of seven years would have been no defense to the. guardian, and so it was no defense to his sureties.”

This was a square decision that although Code 1880, § 2107, authorized suit to be brought on the bond of the guardian on Lis failure to comply with the law in respect to filing his final account and settling the estate, nevertheless the statute did not begin to run in favor of the guardian or his sureties against the. ward until the guardian had filed his final account; and the opinion further necessarily holds that the final account should, be filed when the property is turned over on the arrival at majority of the ward. And we think this is the time construction of both statutes (Code 1880, § 2107, and Code 1906, § 2442), and of the statute here invoked (Code 1892, § 2738, and Code 1906, § 3098). The purpose of both statutes was to compel the guardian to file his final account when the property was delivered up to the ward on arrival at majority of the ward, and neither the seven-year statute under the Code 1880, nor the five-year statute under Code 1892, § 2738, can be invoked in favor of the guardian or his sureties until that final account has been filed and the express trusteeship terminated. Otherwise the guardian would be able to avail himself of his own wrong, and be free from any accounting to his ward for any property, no matter how valuable, if only he should hold on to. it for five years after majority. A construction of this sort would impute monumental absurdity to the legislature. It is a rational construction to hold that this statute was intended for the benefit of those guard ians, and those alone, who, when their wards become twenty-one years of age, should then deliver to them their property, make their final account and be discharged. It may be said that this particular statute is special in its nature, and was aimed at suits against guardians; that the legislature of 1892, in putting this section 2738 into the Code of 1892, intended to change the rule announced in Nunnery v. Day, and Bell v. Rudolph; and that to hold that the only object the legislature could have had in enacting Code 1892, § 2738, was to change the time from seven years to five, which would bar the action, would also impute absurdity to the legislature. But there can be no possible answer to the proposition that the construction of section 2738 which would make it bar the actions against 9. guardian and sureties on his bond, five years -from arrival at majority of the ward, without reference to whether the guardian had filed his final account and been discharged, and thus terminated his express trusteeship, would impute to the legislature a degree of absurdity infinitely greater, and put upon this statute a construction working out the grossest injustice.

Looking at the different reasons sustaining the view we announce: First, Code 1880 § 2107, (Code 1892, § 2223), has remained the law from that time until this, being unchanged in Code 1892, § 2223, and Code 1906, § 2442. The legislature manifestly brought it forward with the construction put upon it in Nunnery v. Day and Bell v. Rudolph, supra. It is exactly the same statute from then till now, ipsissimis verbis, and it has this construction announced in these two cases, supra, and this alone, as its true interpretation during all this while. Second, when Code 1892, § 2738 first becamei the law, it was written into the Code without any express repeal of Code 1892, § 2223, and without any reference to it whatever. If, therefore, Code 1880, § 2107 has ever been repealed, it,has been repealed by implication, and repeals by implication are not favored. Third, Code 1892, § 2738, could, taken upon a technical view (which is not the one on which we propose to rest our decision), nevertheless be sustained on the view that it reduces the period of limitation provided in the Code of 1880 from seven years to five years. The contention, however, that the legislature would have passed this statute simply to reduce the time of the bar two years, is too technical to accept it as the basis for’ our opinion. Fourth and chiefly, Nunnery v. Day, was bottomed upon the universal principle, recognized by all civilized jurisprudence in this country and elsewhere, that the statute of limitations is never set in motion against an express trustee until his express trusteeship shall have been terminated; and that is a perfectly sound and universally just principle.

The court in Nunnery v. Day did not allow the seven-year statute of the Code of 1880 to bar the ward. Code 1880, § 2107 expressly authorized suit by the ward against the guardian and his sureties on the arrival at age of the ward, and yet in that case the ward did not sue within-the seven years, and the reason given was the one we have stated — that the legislature could not possibly have intended to change so fundamental and so just a rule of law in the mere enactment -in a statute of limitations as to when a guardian should deliver up property to the ward, and when the wai’d might sue; a rule abolishing, as to minors only this universal principle. "Why should any rational legislature pick out the most helpless of litigants, minor children, and peremptorily bar them .from bringing a suit for account against guardian and sureties within five years after arrival at age, when that guardianship is an express trust, and yet, at the. same time, leave executors, administrators, and all other express trustees open to suit and unable to invoke the statute, until their trusteeship shall have been finally terminated ? That the legislature should have had such an intention is unthinkable, and this coiut does not propose to commit itself to the monstrous absurdity of imputing so unjust and unwise a purpose to the legislature, when any other reasonable construction can save it from such imputation. It is far wiser, and safer, to hold that the true construction of section 2738 is what the construction of Code 1880, § 2107, was; that this section, like that section, applies alone in-favor of those guardians who had filed their final accounts upon the arrival at age of their wards, and had their trusteeship terminated; and that we hold now to be the true construction of Code 1892, § 2738.

It results frem this that this suit was not bari’ed by said section ; and the judgment is reversed, and the cause remanded.

Reversed.