Day, J.
Enos T. Hughes, as guardian of the estate of William K. Langdon, incompetent, and also in his capacity as administrator de bonis non of the estate of Michael J. Langdon, deceased, brought this action on a guardian’s bond executed by Margaret Langdon, guardian of the estate of her insane husband, Michael J. Langdon. Daniel Kelly and Michael C. Kelly, brothers of Margaret Langdon, signed the bond as sureties. Process was served on the two Kellys only. Pending the action, defendant Michael C. Kelly died, and the action was revived against him in the name of his administrator, the First Trust Company of Lincoln, Nebraska. The trial resulted in a judgment in favor of the plaintiffs and against both defendants, for $14,741.58. Defendants appeal.
The record discloses the following facts: On April 10,' 1888, Margaret Langdon was duly appointed guardian of the estate of her insane husband, Michael J. Langdon. On the same day she executed and delivered to the county judge her bond as such guardian in the penal sum of $12,000, which was signed by her brothers, Daniel and Michael C. Kelly, as sureties. She entered upon the duties as such guardian, and continued to act as such until the death of her husband, which occurred April 22, 1891. At the time of his death Michael J. Langdon left surviving him, as his heirs at law, his widow, Margaret Langdon, and a minor son, William K. Langdon, about SY2 years of age. Nothing was done concerning the administration of the estate of Michael J. Langdon until December 12, 1902, at which time Margaret Langdon was duly appointed administratrix of [511]*511the estate. The record fails to show what, if anything, Margaret Langdon did as administratrix. It does appear,' however, that at a later period she was discharged as administratrix. Shortly thereafter the mother and son moved to Oklahoma, while the son was still a minor; the son never returning to the state of Nebraska until 1915. On June 5, 1907, William K. Langdon,- who was then about 21 years and 9 months of age, was declared insane, and was sent to the state hospital at Nevada, Missouri, where he remained until April 22, 1915. During this period he was not confined entirely within the institution, but was under its supervision and control. After being released he returned to Nebraska in August, 1915, and filed a motion in the matter of the guardianship of his father, Michael J. Langdon, asking that his mother, the guardian, be cited to appear in court and render an accounting of her doings as such guardian. A citation was duly issued by the county court of Lancaster county, in which the guardianship was pending. On March 25, 1916, upon a full hearing, that court found that, after deducting all proper charges in the guardianship, there remained in the hands of the guardian, and unaccounted for, $7,790.26, which with interest from the date of the death of the ward, Michael J. Langdon, amounted to $21,377.57. The court found that one-half of this sum belonged to the widow of Michael J. Langdon, and the other half to William K. Langdon, the son. Shortly thereafter William K. Langdon was again committed to the state hospital. In May, 1916, Patrick J. Langdon was appointed guardian of the estate of William K. Langdon, incompetent. Patrick J. Langdon died soon after instituting the present action, and Enos T. Hughes was appointed guardian in his stead. The record also shows that on proper application to the county court the discharge of Margaret Langdon as administratrix of the estate of Michael J. Langdon, deceased, was set aside, and on December 15, 1915, Patrick J. Langdon was appointed administrator cle bonis non. Upon the death of Patrick J. Lang-[512]*512don, Enos T. Hughes was duly appointed administrator de bonis non, who has since prosecuted this action commenced by Patrick J. Langdon as guardian and as administrator de bonis non.
The main question presented by this record is whether the action was barred by the statute of limitations.
Defendants urge that the statute of limitations began to run April 2J2, 1891, the date of the death of Michael J. Langdon, and as the action was not commenced until September 3, 1918, the four-year statute of limitations applicable in such cases had long since run. In support of •jdieir contention the defendants rely upon section 8515, Comp. St. 1922, which is as follows:
“No action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged: Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed.”
It will be noted that this section of the statute contains two'clauses, the first announcing the general rule, and the second the exception. The first clause in clear and unmistakable language declares that no suit may be maintained against the sureties on a guardian’s bond unless commenced within four years from the time of the discharge of such guardian. The question is at once suggested, when is the guardian deemed to be discharged within the meaning of the term “discharge,” as used in the statute? By the great weight of authority in states having similar statutes, the guardian is discharged by the happening of any event by which the guardianship is brought to a close. Thus, ire removal, resignation, or death of the guardian, the death of the ward, the arrival of the minor of age, and perhaps other events, will operate to discharge the guardian. Loring v. Alline, 9 Cush. (Mass.) 68; Probate Judge v. [513]*513Stevenson, 55 Mich. 320; Paine v. Jones, 93 Wis. 70; Berkin v. Marsh, 18 Mont. 152.
In construing this statute this court in Goble v. Simeral, 67 Neb. 276, held that a guardian is discharged within the purview of the section when the ward becomes of age. It was also held that the statute of limitations in actions upon guardians’ bonds begins to run from the date of the discharge of the guardian, and not from the time when a cause of action has accrued upon final settlement of the guardian’s accounts. The rather anomalous situation of the bar of the statute running in favor of the sureties, before a cause of action accrues, is considered in a satisfactory manner in the Goble case.
We come now to consider the exception clause -of the statute, in its relation to the facts of this case. That clause provides that, if at the time of the discharge of the guardian the party entitled to bring the action be out of the state, or be under any legal disability, the action may be commenced at any time within five years after the return of such, person to the state, or after the disability is removed.
Who is the person entitled to bring the action, as that term is used in the statute? Ordinarily the person entitled to bring an action is he who is entitled to the fruits of the litigation. When Michael J. Langdon died, his property, subject to the payment of debts, descended to his heirs at law. The widow, who had been his guardian, and the minor son were the only heirs. She was in possession of a sum of money as guardian which in law, there being no debts, belonged to herself and her son in equal shares. It was her duty as guardian to make a report of her trust, and to turn it over, at least the part belonging to the son, to the proper persons.
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Day, J.
Enos T. Hughes, as guardian of the estate of William K. Langdon, incompetent, and also in his capacity as administrator de bonis non of the estate of Michael J. Langdon, deceased, brought this action on a guardian’s bond executed by Margaret Langdon, guardian of the estate of her insane husband, Michael J. Langdon. Daniel Kelly and Michael C. Kelly, brothers of Margaret Langdon, signed the bond as sureties. Process was served on the two Kellys only. Pending the action, defendant Michael C. Kelly died, and the action was revived against him in the name of his administrator, the First Trust Company of Lincoln, Nebraska. The trial resulted in a judgment in favor of the plaintiffs and against both defendants, for $14,741.58. Defendants appeal.
The record discloses the following facts: On April 10,' 1888, Margaret Langdon was duly appointed guardian of the estate of her insane husband, Michael J. Langdon. On the same day she executed and delivered to the county judge her bond as such guardian in the penal sum of $12,000, which was signed by her brothers, Daniel and Michael C. Kelly, as sureties. She entered upon the duties as such guardian, and continued to act as such until the death of her husband, which occurred April 22, 1891. At the time of his death Michael J. Langdon left surviving him, as his heirs at law, his widow, Margaret Langdon, and a minor son, William K. Langdon, about SY2 years of age. Nothing was done concerning the administration of the estate of Michael J. Langdon until December 12, 1902, at which time Margaret Langdon was duly appointed administratrix of [511]*511the estate. The record fails to show what, if anything, Margaret Langdon did as administratrix. It does appear,' however, that at a later period she was discharged as administratrix. Shortly thereafter the mother and son moved to Oklahoma, while the son was still a minor; the son never returning to the state of Nebraska until 1915. On June 5, 1907, William K. Langdon,- who was then about 21 years and 9 months of age, was declared insane, and was sent to the state hospital at Nevada, Missouri, where he remained until April 22, 1915. During this period he was not confined entirely within the institution, but was under its supervision and control. After being released he returned to Nebraska in August, 1915, and filed a motion in the matter of the guardianship of his father, Michael J. Langdon, asking that his mother, the guardian, be cited to appear in court and render an accounting of her doings as such guardian. A citation was duly issued by the county court of Lancaster county, in which the guardianship was pending. On March 25, 1916, upon a full hearing, that court found that, after deducting all proper charges in the guardianship, there remained in the hands of the guardian, and unaccounted for, $7,790.26, which with interest from the date of the death of the ward, Michael J. Langdon, amounted to $21,377.57. The court found that one-half of this sum belonged to the widow of Michael J. Langdon, and the other half to William K. Langdon, the son. Shortly thereafter William K. Langdon was again committed to the state hospital. In May, 1916, Patrick J. Langdon was appointed guardian of the estate of William K. Langdon, incompetent. Patrick J. Langdon died soon after instituting the present action, and Enos T. Hughes was appointed guardian in his stead. The record also shows that on proper application to the county court the discharge of Margaret Langdon as administratrix of the estate of Michael J. Langdon, deceased, was set aside, and on December 15, 1915, Patrick J. Langdon was appointed administrator cle bonis non. Upon the death of Patrick J. Lang-[512]*512don, Enos T. Hughes was duly appointed administrator de bonis non, who has since prosecuted this action commenced by Patrick J. Langdon as guardian and as administrator de bonis non.
The main question presented by this record is whether the action was barred by the statute of limitations.
Defendants urge that the statute of limitations began to run April 2J2, 1891, the date of the death of Michael J. Langdon, and as the action was not commenced until September 3, 1918, the four-year statute of limitations applicable in such cases had long since run. In support of •jdieir contention the defendants rely upon section 8515, Comp. St. 1922, which is as follows:
“No action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged: Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed.”
It will be noted that this section of the statute contains two'clauses, the first announcing the general rule, and the second the exception. The first clause in clear and unmistakable language declares that no suit may be maintained against the sureties on a guardian’s bond unless commenced within four years from the time of the discharge of such guardian. The question is at once suggested, when is the guardian deemed to be discharged within the meaning of the term “discharge,” as used in the statute? By the great weight of authority in states having similar statutes, the guardian is discharged by the happening of any event by which the guardianship is brought to a close. Thus, ire removal, resignation, or death of the guardian, the death of the ward, the arrival of the minor of age, and perhaps other events, will operate to discharge the guardian. Loring v. Alline, 9 Cush. (Mass.) 68; Probate Judge v. [513]*513Stevenson, 55 Mich. 320; Paine v. Jones, 93 Wis. 70; Berkin v. Marsh, 18 Mont. 152.
In construing this statute this court in Goble v. Simeral, 67 Neb. 276, held that a guardian is discharged within the purview of the section when the ward becomes of age. It was also held that the statute of limitations in actions upon guardians’ bonds begins to run from the date of the discharge of the guardian, and not from the time when a cause of action has accrued upon final settlement of the guardian’s accounts. The rather anomalous situation of the bar of the statute running in favor of the sureties, before a cause of action accrues, is considered in a satisfactory manner in the Goble case.
We come now to consider the exception clause -of the statute, in its relation to the facts of this case. That clause provides that, if at the time of the discharge of the guardian the party entitled to bring the action be out of the state, or be under any legal disability, the action may be commenced at any time within five years after the return of such, person to the state, or after the disability is removed.
Who is the person entitled to bring the action, as that term is used in the statute? Ordinarily the person entitled to bring an action is he who is entitled to the fruits of the litigation. When Michael J. Langdon died, his property, subject to the payment of debts, descended to his heirs at law. The widow, who had been his guardian, and the minor son were the only heirs. She was in possession of a sum of money as guardian which in law, there being no debts, belonged to herself and her son in equal shares. It was her duty as guardian to make a report of her trust, and to turn it over, at least the part belonging to the son, to the proper persons. If an administrator had been appointed, he would have been a proper person to receive the money. None was appointed, or at least not until 11 years after the ward’s death; but the administrator was not the only proper person to receive this money, or to bring an action for its recovery. When all the debts of an estate are paid, and nothing remains to be done except thé formal [514]*514statutory proceedings to settle the estate, the only heir may bring an action in equity to recover assets of the -estate. And this is true when there is an administrator who refuses to bring the action. Prusa v. Everett, 78 Neb. 251 (opinion on rehearing). ,
In the case before us, no administrator was appointed until 1902, at which time the widow was named as administratrix. She made no accounting to herself as administratrix of her trust as guardian. While the record is not entirely clear, it appears that her actions as administratrix were purely nominal for the purpose of fixing heirship, the county court decreeing that the heirs were the widow and the minor son. When it was sought to open up the estate in 1915, the county court found that the administratrix had fraudulently and wrongfully failed to make a full and true report as administratrix, and the discharge of the administratrix was set aside, and an administrator de bonis non appointed. Under the circumstances presented by the record, we hold that William K. Langdon was the person entitled to bring the action, in so far as it affected the share of the estate coming to him in the hands of the guardian. The county court found on the citation of the guardian that she had $10,688.78 in her hands belonging to William K. Langdon. If it be considered that William K. Langdon was the “party entitled to bring the action,” what was the reason for the long delay in bringing it? The record shows that while he was a minor he removed to Oklahoma, and soon after becoming of age he was declared insane, sent to a state hospital in Missouri, and remained there until the spring of 1915, returning to Nebraska in August of the same year.
It thus appears that William K. Langdon was under the disability contemplated by the statute, the effect of which was to extend the time for bringing the action. The disability was removed in 1915. The action was commenced in 1918, and is not barred by the statute of limitations.
It is contended by the defendants that the evidence was not sufficient to support the judgment. The record shows, [515]*515however, that upon the final accounting and settlement of the guardian’s accounts the county court found, as herein-before stated, that the guardian had in her hands $10,688.78 belonging to William K. Langdon.
July 18, 1924.
In Langdon v. Langdon, 104 Neb. 619, it was held: “The order and decree of the county court as to the amount due from the guardian to his ward upon the final accounting and settlement of the guardian is final and conclusive upon the sureties upon the guardian’s bond.”
It is also urged by the defendants that they will suffer a great hardship by being required to respond on a bond after the lapse of more than 30 years. The defendants had it in their power, however, to require the guardian to make an account of the trust immediately following the death of the ward. At that time there was coming to the guardian from the estate of Michael J. Langdon sufficient funds to have protected the bondsmen.
As stated before, the judgment against the two sureties was for the sum of $14,741.58. The penalty in the bond given by the defendants was $12,000. It is difficult to see on what theory the judgment could exceed the penalty in the bond. If plaintiffs will remit from the judgment as of the date it was rendered all above $12,000 within 20 days, the judgment will be affirmed. Otherwise, it will be reversed, and the cause remanded for further proceedings.
Affirmed on condition.