Huntignton v. Globe Indemnity Co.

6 Ohio Law. Abs. 99, 27 Ohio N.P. (n.s.) 12

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: October 14, 1927
• Docket: No. 102141
• Status: Published

Opinion

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

KING, J.

The defendant, in its first defense to second cause of action, in substance, alleges and claims that the bond executed on the 29th of May, 1922, being the additional bond required by court, was given under authority of 10950 GC. the provisions of which regulate the proceedings for sale of real estate by guardians; that the terms and conditions set forth in the said statute, to-wit: “Conditioned fob the faithful discharge of his duties and the payment of and accounting for all monies arising from such sale” are conditions which the Court shall read into the bond given on the 29th, that, therefore, the liability of the Surety Co. on said bond is limited to a faithful discharge of her duties, and accounting only for the proceeds, with reference to the sale <3f real estate, that the guardian reinvested the proceeds 'in other real estate and thereby fulfilled her duties. In second defense, the Surety claims that, in any event, it is liable only for the proceeds of the sale, to-wit, $2,100.

The condition of the bond usually giveil in the sale of real estate, pursuant to 10950 GC., it as follows: to-wit:

“Now therefore, if the said-shall faithfully discharge his duties, as guardian as aforesaid, and shall' faithfully, and according to law, pay oyer and account for all the monies arising from such sale, then this obligation to be void, otherwise to remain in full force.”

But the terms and conditions of the bond actually given are quite different. The conditions of the bond executed by order of-court, on the 29th of May, are as follows: to-wit:

“Now, if said Josephine H. Howard shall faithfully discharge all of her duties, as such guardian, as is required by law, this obligation to be void, otherwise to íemain in full force.”

In this, connection the law prescribing the duties of Guardians, provides:

“At the expiration o‘f his trust fully to account, ior and pay over, to the proper person, all the estate of the minor in his hands.” GC. 10933.

There is nothing upon the face of the bond, in the recitals or elsewhere, to indicate that said bond was to be limited in its application to the real estate transaction. The terms and conditions thereof are terms and conditions of general guardian bonds.

Counsel for defendant contend that, notwithstanding the effect of the terms and conditions stipulated and agreed upon, the meaning is to be interpreted by the provisions of 10950 GC. that it to say, although the bond given is, in effect, a general guardian’s bond by virtue of 10960 GC. the liability thereon is limited to accounting faithfully for the proceeds of the sale of real estate. In this we do not concur. The conditions of the bond, if • construed as written, afford, in the instant case, ample protection to the minor’s estate. That is the very purpose of the bond. When the court, in furtherance of that object, requires such a bond, the provisions of the statute should not be interpreted to defeat that purpose.

It is true that the conditions imposed by the bond are broader than the statute. However, they were agreed to by the Surety Co., and a consideration paid. To permit the defendant to avoid the obligation of such conditions by such an interpretation of 10960 GC. as is urged would violate the terms and conditions and the very purpose of the bond as well .as the object sought by the legislature in such enactment, namely, the preservation of the ward’s . estate.

Let the demurrer to the first and second defenses of the second amended answer be sustained.

*Note: See Kinkade’s Trusteeship, 23 Oh. Ap. 274; 5 Abs. 339.