Loring v. Bacon

57 Mass. 465

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Metcalf, J.

It was decided in Furness v. Fox, 1 Cush. 134, that the legacy to John W. Furness was a vested and not a contingent legacy. And as it was paid into the hands of the legatee’s guardian, and is still in his hands, he is clearly liable, on his guardianship bonds, (which contain the condition prescribed by the Rev. Sts. c. 79, § 5,) to account for it, and to pay the amount of it to the administrator of the legatee.

We know of no legal objection to the filing of several similar bonds, by a guardian or an administrator, with a single surety on each, instead of one bond with joint sureties. Whether the judge of probate could, in this case, have required the guardian, against his will, to give the second bond, and have legally dismissed him from his trust, if he had refused to give it, we have no occasion now to decide. The guardian, of his own motion, suggested that his first bond was insufficient to secure the bequest to his ward, and readily submitted to the direction of the judge in the premises. The judge thereupon directed, that a new bond should be given, and the guardian voluntarily gave it, and furnished a new surety. Under these circumstances, the second bond must be held to be valid, both as against the principal and the surety.

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We are also of opinion that the filing of the second bond did not discharge, nor in any way impair, the obligation of the first. It is probably a necessary implication from the provisions of the Rev. Sts. c. 70, §§. 27, 30, that when a judge of probate shall require and obtain a new bond, because the sureties on the old one are not sufficient, or because they claim a discharge from further responsibility, after having stood responsible for six years, those sureties shall not be answerable for subsequent breaches of the condition of those bonds. But those provisions do not apply to the first bond given in this case. The second bond was not given because the surety in the first was insufficient, nor because he petitioned to be discharged, but because the penalty of the bond was not sufficient. Nor did the judge of probate pass any decree discharging the surety.

The plaintiff is entitled to judgment against each defendant for the penalty of the bond executed by him. Each defendant may be heard in chancery ; and execution will be awarded against each, for such sum, not exceeding the penalty of his bond, as shall be found to be equitably due to the plaintiff. As both bonds were given for the same purpose, and with the same conditions, the defendants are to be deemed co-sureties of the guardian. But as they are sureties in different sums, they are, as between themselves, compellable to contribute in proportion to the penalties of their respective bonds. Deering v. Winchelsea, 2 Bos. & Pul. 270, and 1 Cox, 318; Pendlebury v. Walker, 4 Younge & Coll. 441. This, however, is a matter with which the plaintiff has no concern. It may hereafter concern the defendants, if the plaintiff shall collect of one of them more than the proportion which, as between him and the other, he is bound .o pay. Defendants defaulted.

See act of 1851, c. 31.