
    Roberts v. Colvin.
    October Term, 1846,
    Richmond.
    1. Guardian and Ward — Suit Sor Account — Liability of Surety. — A ward, soon after coming: of age, flies a bill against the adm’x of her guardian for an account. This suit lingers for twenty-four years, and then there is a decree in favor of the ward. The ward, not being able to obtain satisfaction of the decree, flies a bill against the surety of the guardian. Held :
    1. Same — Same—Same.—The lapse of time during which the ward was prosecuting the claim against the adm’x of the guardian, furnishes no ground for the exoneration of the surety.
    2. Same — Same—Same—Statute of Limitations, — The statute of limitations does not apply to the case.
    2. Same — Same—Decree in Former Suit — Prima Facie Evidence of What it States. — The bill in the second suit charges that the decree in the first was for money due from the defendant’s intestate as guardian ; and a copy of the decree is filed with the bill. The answer does *not deny the fact; nor do the defendants call for a full record of the proceedings. Held. That this was prima facie evidence that the first decree was on account of a debt due to the plaintiff from the defendant’s intestate as guardian.
    3. Administration Bond — Failure to Conform to Requisites of Statute — Effect. — An administration bond not conforming to the requisitions of the statute, and containing no provision for the benefit of creditors, no decree can be rendered in their favour against the sureties therein.
    4. Principal and Surety — Property Put in Hands of Surety to Discharge Debt — Effect.—property having been put by a principal debtor in the hands of her surety, for the purpose of discharging a claim then prosecuting against them, the surety is to be treated as a trustee holding such property for the benefit of the creditor.
    5. Guardian — Surety—Decree against — When Made.— A decree should not be made against the surety of a guardian until the account of the administratrix of the guardian is settled, and an enquiry is directed to ascertain whether any estate real or personal of the guardian remains.
    In 1793, Joseph Roberts qualified as the guardian of Molly Roberts, and executed a bond, with Robert Latham as his security. Joseph Roberts died prior to the year 1800, when Susanna Roberts his widow qualified as his administratrix, with Philagathus Roberts and William Helm as her securities. But the condition of the administration bond which they executed did not conform to the requisitions of the statute, and omits all provision for the benefit of creditors.
    Molly Roberts having married Gabriel Colvin, they brought a suit on the chancery side of the County Court of Culpeper, which was carried by appeal to the Superior Court; and after great delay they in 1824, obtained a decree against Susanna Roberts as ad-ministratrix of Joseph Roberts, for £92. 11. 6%., with six per cent, interest thereon from the 18th day of July 1817 till paid. Soon after this decree was obtained, Colvin and wife filed their bill in the late Chancery Court of Fredericksburg, in which they stated the facts as above, except as to the administration bond, and alleged that the decree they had obtained against Susanna Roberts, as administratrix of Joseph Roberts, was for the amount due from Joseph Roberts as guardian of the said Molly: *and that Susanna Roberts having removed out of the Commonwealth, the said decree had been unavailing. They therefore made the said Susanna, as ad-ministratrix of Joseph Roberts, her sureties Philagathus Roberts and William Helm, Armislead Long and Peggy his wife, who was Peggy Latham the personal representatives of Robert Latham deceased, and their securities, and M’Neale the executor of Philip "Latham, who had also been a personal representative of Robert Latham, and his sureties, parties to their suit; and asked for satisfaction of their decree.
    M’Neale, executor of Philip Latham, answered the bill, saying he had long before that time fully administered the estate of his testator, and paid it over to the parties entitled. Long also answered, admitting, if he was responsible for the claim of the plaintiffs, he had assets in his hands of the estate of Robert Latham sufficient to discharge it.
    The plaintiffs afterwards amended their bill, and charged that when Susanna Roberts removed from the Commonwealth she placed in the hands of her son Philagathus Roberts, who was one of her sureties, and with a view to discharge their debt, property sufficient for that purpose, which he had failed properly to apply: and that he was still in possession of a part of that property. They, therefore, prayed that he might be made a party defendant to their suit, and that he might be compelled to pay to them the amount of their claim. This amended bill was taken for confessed against the defendant P. Roberts.
    The suit lingered on the docket until 1832, when it was removed to the Circuit Superior Court for the county of Culpeper; and in 1833, Colvin the plaintiff, and Susanna Roberts and Armistead Long having died, Mrs. Colvin filed a bill of revivor and supplement, in which, after charging the facts contained in the original and amended bills, and stating the proceedings in the cause, *she made the representatives of the said Susanna and Armi-stead, and the other original defendants, parties thereto; and prayed that she might have against them respectively, the relief asked for in the said original and amended bills. With this supplemental bill she exhibited a copy of the decree of 1824.
    This bill was taken for confessed against all the defendants; and the cause coming on to be heard in 1837, the Court made a decree that the administrator of Susanna Roberts, out of the assets of his intestate in his hands to be administered, and Phil-agathus Roberts should pay to the plaintiff the sum of ninety-two pounds eleven shillings and six pence half penny, with six per cent, interest thereon from the 18th of July 1817, till paid, and her costs; subject to a small credit of 8 dollars 59 cents paid 23d of August 1823; and liberty was reserved the plaintiff to apply thereafter, for a decree against some or all of the defendants, in the event that the decree should prove unavailing in whole or in part.
    After this decree was made, Philagathus Roberts applied by petition to the Judge to rehear the cause; and he was permitted to file his answer, in which he denied that at the time of filing the original or amended bills he was in possession of any property that belonged to Susanna Roberts. He said that when Susanna Roberts left the State of Virginia she left with him two slaves to be sold and applied to the payment of certain debts of hers. That they were sold, and were purchased by himself at a full and fair price. That attachments in chancery had been sued out against the said Susanna; and he had been made a party thereto, and had paid her debts to a much larger amount than the property left in his hands. He insisted further, that the plaintiff or her late husband had been paid the amount of her claim against Joseph Roberts, and that nothing has been due to her on that account for the last forty years. He therefore objected to the claim as a stale demand, and pleaded *the statute of limitations as to her claim, and also as to his own purchase of the slaves left with him by his mother.
    Prom the evidence, it appears that the slaves were sold under an execution which issued on the decree of 1824 in favour of Colvin and wife, and were purchased by P. Roberts for a mere nominal sum, apparently not more than ten dollars.
    The cause came on again to be finally heard in November 1838, when the Court made a decree that the administrator of Susanna Roberts, out of the assets of his intestate in his hands, and the defendants P. Roberts and Helm, as her securities in her administration of the estate of Joseph Roberts, out of their own goods, should pay to the plaintiff the sum of ¿’92. 11. 6)4., with six per cent, interest thereon from the 18th of July 1817, till paid, and her costs; subject to a credit of 8 dollars 59 cents paid 23d of August 1823: and liberty was reserved to the plaintiff to apply tp the Court for a decree against some or all of the other defendants in the event that the decree should prove unavailing in whole or in part. Prom this decree Philagathus Roberts applied to this Court for an appeal, which was allowed.
    Patton, for the appellant.
    No counsel for the appellee.
    
      
      Guardian and Ward. — See monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
      Principai and Surety — Pendency of Suit for Long Lapse of Time — Effect upon Liability of Surety. — The principal case holds that the lapse of time during which the ward was prosecuting a claim against the administratrix of the guardian furnishes no ground for the exoneration of the surety ; the statute of limitations not applying to the case. But in Morris v. Duke, 2 P. & H. 482, citing and distinguishing Boberts v. Colvin, 3 Gratt. 358, and Cookus v. Pey-ton, 1 Gratt. 431, it is held that pendency of a suit by those entitled to the estate against the administrator and his sureties, to which such person is no party, is no excuse for their laches in prosecuting their claim against him.
    
    
      
      Bonds — Failure to Comply with Statute — Effect.—In Monteith v. Com., 15 Gratt. 187, it is said, the cases of Frazier v. Frazier, 3 Leigh 642 and Boberts v. Colvin, 3 Gratt. 358, merely decided that the parties could not be charged beyond the stipulations of their contract The bonds did not conform to law and did not extend to the- liability, asserted. See also, citing the principal case, Gibson v. Beckham, 16 Gratt. 331. See monographic note on “ Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      See the principal case cited in Washington, O. & W. R. Co. v. Cazenove, 83 Va. 748, 3 S. E. Rep. 433; Lacy v. Stamper, 27 Gratt. 57.
    
   ALLPN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears a suit was instituted at an early period by the appellee and her husband against the administratrix of the deceased guardian, to recover as is alleged in the bill, from the said representative, the amount due to the ward from the estate of said guardian; in which suit such proceedings were had, that on the 4th of October 1824, a decree ms rendered against the administratrix of said guardian in favour of the appellee and her deceased husband, *such decree in the absence of any denial on the part of the representatives of said guardian or of his security, of the allegations of the bill, or of any objection for the failure to exhibit a full record of the proceedings, was properly treated by the Court as furnishing prima facie evidence that the decree was founded on the liability of said Joseph Roberts as guardian.

The Court is further of opinion, that as a proceeding was immediately instituted to recover the amount of such decree from the representatives of such guardian, and the representatives of his surety in the official bond, the lapse of time during which the ward was prosecuting the claim against the representative of the principal, furnishes no ground for the exoneration of the security ; and the statute of limitations has not been relied on by the security of the guardian ; nor does it apply.

The Court is therefore of opinion, there was no error in so much of said decree as reserved to the appellee leave to apply at a future time for further relief against other defendants in said cause, not decreed against primarily.

But the Court is further of opinion, that as the condition of the administration bond executed by the said Susanna Roberts, as administratrix of the said Joseph Roberts deceased, dated the 21st July 1800, did not conform to the requisitions of law, and contained no provision for the benefit of creditors, no action could be maintained against the securities on said bond, according to the authority of Prazier v. Prazier’s ex’ors, 2 Deigh 642: and therefore, so much of said decree as subjects the said P. Roberts and William Helm, jointly, in their character of sureties, was erroneous.

The Court is further of opinion, that as it appears property was placed in the hands of the said Philagathus Roberts by the said Susanna Roberts, on her removal from the Commonwealth, for the purpose of discharging the debts due from her, he is to be treated as trustee holding such property for the benefit of such creditors; and Re-came accountable for the value thereof, *or so much as had not been previously applied by him to the payment of the debts of said Susanna, to the appellee, upon the rendition of the decree in her favour ascertaining the validity and amount of her claim against the said Susanna Roberts. But that before any decree could properly be rendered against the said P. Roberts on this ground, an account should have been directed to ascertain the value of such propertj', and the hires of the slaves, and the credits to which he would be entitled for payments made on, account of said Susanna.

The Court is further of opinion, that before any decree should be rendered against the representatives of the security in the guardian’s bond, an account should be taken of the administration of the representatives of said Susanna Roberts; and also an en-quiry should be directed to ascertain whether any estate real or personal of the said Joseph Roberts still remains undisposed of which could be subjected to said claim.

The decree is therefore reversed with costs, and remanded to be further proceeded in according to the principles above declared in order to a final decree.  