Kirby v. Turner

1 Hopk. Ch. 309

Opinion

The Chancellor.

The object of this suit, is, to obtain satisfaction for certain parts of Maria E. Turner’s estate, bequeathed to her by her father, John Turner junior, who died in 1801. Thomson and Dunlap were executors of the will of John Turner junior, and as executors, had his personal estate in their possession. They and Archibald Turner, were appointed guardians of Miss Turner, in June 1808 ; and in v August 1807, they delivered to Archibald Turner, Miss Turner’s share of her father’s personal property. The property which was thus delivered to Archibald Turner, has not been accounted for by him, in any manner, either to Miss Turner, after she attained legal age, or to the complainants, since their marriage. Archibald Turner as one of her guardians, also received the rents and income of her real estate, during her minority; and for the sums so received, he has likewise, failed to account.

In these circumstances, what were the rights of the ward against these guardians,, or either of them ? Were all the three guardians responsible to the ward or to the complainants ; or was Archibald Turner alone, liable for the property of the ward, which he thus received ? I now consider the case, without reference to the bond or the release.

Miss Turner’s share of her father’s personal estate now in question, was never in the possession of Thomson and Dunlap, as guardians. It was a part of the estate of her father, which at his death, passed into the hands of Thomson and Dunlap, as executors of his will. It was held by them as executors, until they delivered it to Archibald Turner, as one of the guardians of Miss Turner. Archibald Turner was the acting guardian of his sister ; Thomson and Dunlap never acted as guardians of her estate; and Archibald Turner alone, had her property in his possession, after it had been delivered to him by Thomson and Dunlap. It is expressly alleged by Thomson, that the delivery of Miss Turner’s share of her father’s personal estate to Archibald Turner, was made by Thomson and Dunlap, as executors, and in no other character. The allegation of the representatives of Dunlap, is, that the delivery was made by Thomson as acting executor. Archibald Turner states this transaction in substance, as it is stated by Thomson. The receipts given for this property, were from Archibald Turner, as acting guardian, to Thomson and Dunlap, as executors. These statements and facts are not denied or disproved ; and it must be taken as a fact, that the pro pcrty in question, passed from Thomson and Dunlap, as ex=ecutors, to Archibald Turner, as guardian.

■ This property was then delivered by Thomson and Dunlap to Archibald Turner, as it would have been delivered by any other persons, had it been held by others as executors; and the receipt by Archibald Turner, was the act of one of the three guardians, who took into his sole possession, as guardian, the property of his ward. The delivery of this property by Thomson and Dunlap as executors, to Archibald Turner as guardian, was a measure free from objection. Some transfer from the executors to the guardians or some of them, was proper and necessary. Any one of the guardians was entitled to receive this property ; it was delivered to one of them ; the guardiairwho received it, was the acting guardian in other respects, and was then solvent and rich; and there was at that time, not the least reason to doubt, that this property would be perfectly secure, in the possession of Archibald Turner. The delivery and the receipt took place in good faith, for the use of the ward; and these acts exonerated Thomson and Dunlap as executors, and charged Archibald Turner, as guardian. Thomson and Dunlap then never had this property in their possession, as guardians; Archibald Turner had it in his sole possession, as one of the guardians ; the failure to account for it to the complainants, has been the default of Archibald Turner, for which he is responsible ; and Thomson and the representatives of Dunlap, are not responsible for that default.

The rents and profits of the real estate of Miss Turner, were received by Archibald Turner alone. They might have been received by all or any of the guardians; they were in fact, received by one of the guardians; and the other guardians can not be responsible for this property, or for any misapplication of it, in which they had no agency.

The trust of these three guardians, was in its nature, joint and several. Their rights were equal; their duty was divisible ; and they were authorised to act either separately, or in conjunction. They were jointly responsible, for joint acts; and each of them was solely responsible, for his own acts and defaults, in which the others did not participate. Where one of several guardians, acts alone and misapplies the property of his ward, or fails in any tiling which is his several duty, he alone is responsible for his own misconduct. The failure here, to account for the property in question, has been wholly, the default of Archibald Turner; and Thomson and the representatives of Dunlap, can not be liable for this property.

Such would be the situation and rights of these parties, if no bond had been given. The bond taken by the surrogate, bound Archibald Turner, Thomson, Dunlap and Taylor, jointly and severally; and its condition was, that Archibald Turner, Thomson and Dunlap should in all things, faithfully discharge the duty of guardians of Miss Turner, according to law. The case which has occurred, is a loss of Miss Turner’s property, by the default of one of the guardians. Are the two guardians, who independently of the bond, are not responsible for this default, rendered liable for it, by the bond ?

The bond did not create the trust, or define its nature and powers ; nor did the bond vary the obligations of the guardians. Their rights and duties are defined by law : and their duties were the same, after this bond had been given, as they w'ould have been, had no bond existed. The bond in respect to the guardians themselves, bound them, according to their legal obligations ; rendering them jointly liable for joint acts, and each one severally, for his own acts. If the bond were considered, as making the guardians sureties for each other, in respect to the separate acts of each guardian, their responsibilities would be essentially altered and greatly extended. Joint guardians like joint executors or administrators, may very willingly undertake the trust proposed to them, when each one knows, that he is to be responsible only for acts in which he concurs ; while he would not become surety for the fidelity or the separate acts of his colleagues. The rules of law are not altered by this bond; nor do its terms import, that these guardians intended by it, to incur any engagement different from their legal responsibilities. This joint and several bond is easily susceptible of the distributive construction, winch reconciles it with the rules of law, and holds the guardi ans liable jointly, in some cases, and severally, in others. The idea that all these guardians are bound for the several acts of each of them, is founded altogether, on the terms jointly and severally, used in the bond. This bond is not for the payment of money, but for the performance of a trust, which is joint and several, in its nature. The whole bond is one entire contract, of which the true sense is expressed in the condition. All parts of the instrument, are to be taken together, in explanation of the sense and substance of the whole. The words jointly and severally, must operate, not merely in the penal engagement of the bond, but also in its condition, and throughout the whole Contract. The guardians are bound jointly and severally, in one part of the bond, as they are bound in another; jointly and severally in the penalty, in the same sense and in the same cases, as in the condition; which is, to discharge their duty, according to the laws of this state. The words jointly and severally, have proper force and effect, by referring them to the condition, as well as to the penalty of the bond, and by applying them distributively, to the different cases, in which a failure to perform the trust, may in respect to the different guardians, be a joint or a several breach of the condition. The practice of taking security from guardians, is derived to us from the English chancery; and there, as in this court, it has never been supposed, that the security taken from joint guardians, involves suretyship for the separate acts of each other. Our law authorising surrogates to appoint guardians, requires, that the surrogate shall take from every guardian, a bond with condition, that such guardian shall faithfully discharge his duty. If this direction were literally pursued, a bond would be taken from each guardian ; but where all give a joint and several bond, it must have the effect of separate bonds, and must render all liable for their joint acts, and each one liable for his own separate acts. Our statute did not intend, to place joint guardians, in the relation of sureties to each other. Security to the ward, is an object provided for in another manner. Every such bond is to be taken with sufficient surety; and he who becomes surety, is bound for the separate acts of each guardian as well as for the joint acts of all. The surrogates usually take one bond from joint guardians or joint administrators ; considering the bond of all as the bond of each one, and requiring a surety or sureties, for the fidelity of all and each of the trustees. This practice is convenient; and a construction of such a bond, which should render the trustees sureties for the individual defaults of each other, would be as inconvenient, as it would be foreign to the real intentions with which such bonds are executed. When joint guardians or joint administrators are appointed, one of them often becomes the acting trustee; while the others act not at all, or act only in particular instances. This is frequently done with the best intentions ; the funds of the trust, arc received and held by the acting trustee ; and he sometimes, wastes or misapplies the property. It is repugnant to reason and justice, that the innocent trustees, who have no part in the delinquency, should be answerable for it, equally with the delinquent himself; and still more is it so, as loss does not follow, and full redress is provided by the security which the delinquent has given for his own'fidelity, They are not responsible by our law; and though they may become sureties for each other, by express contract, suc'h a responsibility is not created by the ordinary bonds given upon their appointment. Bonds from guardians appointed by the surrogates, are required by statute ; are taken by public officers ; are given by all guardians, and always, with sufficient surety to the ward. These bonds are always meant to be such bonds as the law requires. A security thus required by a statute, and intended by the officer who takes it and the parties who give it, to be taken and given, in pursuance of the statute, should operate according to the intention of the legislature ; and the words used in the bond should be so construed as to give efiect to that intention. If the terms of such a bond are ambiguous or seemingly at variance with the object of the law, they should be construed according to the intention of the law, and should have efiect, according to the duties which the bond is meant to enforce. The bond required by our law from guardians, was not intended to enlarge their legal responsibilities ; or to bind all the guardians for the separate delinquencies of one of them. All the objects of the law áre attained, and the terms of a joint and several bond are satisfied, by the construction, that it renders the • guardians jointly liable, where they act jointly, and severally réSp0nsible, for separate breaches of the trust. Such being the true sense and sound construction of this bond, it does not render Thomson and the representatives of Dunlap responsible, for the separate acts and defaults of Archibald Turner.

The complainants insist, that the release executed by Miss Turner to Thomson, is null, and should be treated as void, in equity. Upon this question, I concur entirely, with the late , chancellor in his opinion, given in a former stage of this cause; 6 John. ch. 242. The facts and circumstances concerning the execution of this release, are now before me, more fully, than they were before the late chancellor, when he decided upon the bill and the plea and answer of Taylor; but the case is substantially, the same. The release was given by Miss Turner to Thomson, freely and voluntarily. It was given without fraud, coercion or surprise ; without any donation of property, or reward to Thomson; and without any condition for his benefit. No undue means were used to procure the release"; and it gave no benefit to Thomson, beyond that of a mere discharge from a trust, which on his part, had been faithfully performed. I am clearly of opinion, that this release is valid.

Whqtwhen, is the effect of the release ? It is a maxim of 'láty,.that^release to one joint debtor, is a release of the debt itself,'exonerating not only tlie debtor to whom the release is . given, but all ottiess'bound for the same debt. This ancient ánd strict rule of tlie common law, is entirely reasonable, when it is applied to an'absolute release of a mere debt from divers ■ ¿persons. In -such cases, the release is justly considered an acknowledgment by the creditor, that he has received satisfaction of the debt; and the release is conclusive in favor of all - the debtors. But this rule can not be applicable to the case now before the court. The demand now in question, arises from á breach of trust; the release is not absolute, but special; the demand was not the debt of him to whom the release was given ; but was dire from another ; and this demand, for which satisfaction has never been received, and is now sought, is expressly reserved against the guardian, who is in law and justice, bound for its satisfaction. This release can have no artificial operation, no effect different from that really intended by the parties to the instrument. It was given in a case in which the guardians might be jointly responsible and also separately responsible to the ward; it was manifestly,, given to release from a separate responsibility, and not from a joint responsibility; the demand now in question, was not a claim against Thomson to whom the release was given, but was a claim against Archibald Turner; and against him, it is expressly reserved. This instrument must have effect, according to the intentions of the parties ; and it can not operate to destroy or contravene their intentions. The release is clear in its terms and meaning. It discharges Thomson, who was not responsible for the property in question ; and it holds Archibald Turner liable, he having received this property and having it then in his possession, as acting guardian. It releases Thomson from all claims and demands which Miss Turner had or could claim against him. Her claim for the property now in question, was both in law and in her own contemplation, against her brother, who held her property; and that claim, she reserved. Her release to Thomson, was evidently intended, as an acquittance to one of her guardians, who had closed his own trust, to her satisfaction. It was given and taken, as the written discharge usual in similar cases, where the guardian being no longer j any thing to his late ward, desires to possessy is willing to give, a formal acquittance, jj instrument, as exonerating all the defer responsibilities, would be a pervérsion of which exonerates joint debtors where a reli of them, and would utterly subvert all the t^tSaAcTjusticej this case. This release therefore, has not disehargeds&Tchibald Turner from his responsibility to the complainants, for the property in question ; and he is now liable for this property, as if the release had not been given.

Taylor was the surety of all the guardians. He alleges in his answer, that he executed the bond or became surety, at the particular instance of Thomson, and as surety for Thomson; and that he did not intend to become surety for Archibald * Turner or Dunlap. This allegation can not avail, to exonerate Taylor. He became surety for all the guardians ; the terms of the contract, are full and explicit; and he can not destroy his engagement, by contradicting the language of his bond. He does not allege, that he executed the bond under any fraud, mistake or surprise; and he shows no reason, which can be allowed either in law or equity, to exoneerate him from his contract. Taylor thus became the surety of these guardians; their surety, in compliance with the statute ; the sufficient surety required by law, to be given by every guardian, that he shall in all things, faithfully discharge the duties of his trust. He became the surety of each and all of these guardians; answerable for the joint acts of all, where all should act jointly ; and for the separate acts of each guardian, where one might act alone ; responsible, that the whole trust and every part of it, should be in all things, faithfully discharged. Archibald Turner has failed to discharge his duty, as one of the guardians ; and for this default, Taylor as his surety, is responsible to the complainants. Taylor is here liable by the terms of his contract; and as the release does not discharge Archibald Turner the principal, it can not discharge Taylor his surety. The release operates in respect to Taylor, as it operates in respect to all his principals. Thomson being discharged by the release, Taylor is also discharged so far as Thomson might be liable, and to no greater extent. Taylor has the full benefit of the release, so far as the release is effectual. The release can not have one construction in respect to the principals, and a different construction, in favor of the surety. When the extent of the release is ascertained, its effect must be the same, in respect both to the principals and the surety. This case has no analogy to thpse, in which a surety is relieved, where the principal without his assent, varies the original contract. Here, the engagement of the surety, has not been varied; and the release operates not to his detriment, but for his benefit. His responsibility has not been enlarged or prolonged, beyond the stipulations of his own contract. He is discharged from a part of his contract, by the special release, which has discharged one of his principals, from that subject of responsibility. He is discharged from this distinct portion of his responsibility, as he is also discharged from another portion of it, by the faithful application of some parts of Miss Turner’s property, to her use. But this special instrument does not exonerate Taylor from another distinct responsibility ; and neither he nor the guardians, can wrest this partial release from its purpose, and convert it into a total discharge.

The property in question, belonging to the ward, has been wasted or misapplied by Archibald Turner singly, without the participation or default of the other guardians ; and Thomson and the representatives of Dunlap, are not answerable for this misconduct of Archibald Turner. He and Taylor as his surety, are responsible to the complainants, for this breach of his trust. The suit as to Thomson and the representatives of Dunlap, is dismissed with costs : and between the other parties, it is referred to a master, to ascertain and report the amount, with which Archibald Turner and Taylor are chargeable, for the separate acts and defaults of Archibald Turner, as guardian.