
    No. 13,958.
    The State, ex rel. Howe, v. Bond.
    GuABDIAN and Wabd. — Payment to Guardian by Mistake. — Liability of Surety. — Where money has been paid by mistake by the administrator of an estate to a guardian, and the guardian in making his report to the court charged himself with such overpayment, an action can not be maintained on his bond in favor of the wards for the recovery of such sum of money. The money was not that of the wards, and the surety on the guardian’s bond is not liable for its misappropriation.
    Prom the Union Circuit Court.
    
      L. H. Stanford, for appellant.
    
      F. D. Evans, for appellee.
   Elliott, J.

— William Brown was appointed guardian of the infant children of Ebenezer Howe, deceased, and the appellee became the surety on the bond executed by him as guardian. Brown reported to the court that he had collected for his wards various sums of money, amounting in the aggregate to $1,211.86, and in this amount was included money collected from the administrator of Ebenezer Howe’s estate, $400 at one time, and $690.40 at another. On the face of his reports, Brown was chargeable with $372.90 at the time of his resignation. The administrator of Ebenezer Howe’s estate, by mistake, paid Brown $400 more than he was entitled to receive, and Brown included in the charge against himself the $400 overpaid by the administrator. The overpayment was made because the parties at the time of the final settlement had forgotten the former payment and omitted to take it into account. The case is really just this: Brown, on the face of his reports, owed the wards $372.90, but he charged himself with $400 which had been paid to him by mistake, and which did not belong to his wards. The appellant’s contention is that an action can be maintained on the bond for the reason that the wards are entitled to the money in Brown’s hands, and that he can not withhold it from them.

Filed Nov. 26, 1889.

The money does not belong to the wards nor to the guardian. It belongs to the administrator who paid it by mistake to Brown. The parties for whose benefit this action is prosecuted have no right to the money and it is no part of their estate. The sureties on Brown’s bond undertook that he should faithfully account for the money of his wards, but the money involved in this dispute was not that of the wards, and the surety on the gurdian’s bond is not liable for its misappropriation. The claim of the wards to the money is no better than that of the guardian, but neither party has the shadow of a legal right to it.

Judgment affirmed.  