
    Uriah J. Favorite, by his next friend, etc., v. Levi N. Booher's Administrator.
    1. The four years’ limitation, prescribed by the act for the settlement of estates, within which suits are to be commenced against executors and administrators, applies to an action instituted on a'guardian’s bond; and the disability of infancy will not save the plaintiff from the operation of the statute.
    2. The refusal to pay over to a minor or his attorney, after the guardianship has terminated, money in the hands of the guardian belonging to such minor, is not a breach of the bond of the guardian; and such refusal will not give the minor a right, by his next friend, to institute suit against the surety on the bond.
    3. Although no formal cause of action may have accrued, for want of demand by a competent guardian, or by the minor after coming of age, yet as it was competent for the plaintiff to have perfected his cause of action during his minority, by having a guardian appointed and a demand made 
      —qucere: whether the four years’ limitation would not still run against him.
    4. Money arising from the sale of land possessed by the decedent at the time of his death, and sold for the payment of debts, and money received by the administrator from the guardian of the heirs of the intestate under an arrangement made to save their lands from sale, are not new assets within the meaning of section 104 of the administration law, and will not extend the four years’ limitation within which creditors are required to sue.
    Error to the district court of Miami county.'
    On March 1, 1863, Uriah J. Favorite, an infant, by his nest ■Mend, filed in the court of common pleas of Miami county his petition against John H. Morrison, William K. Cromer, Robert Morrison, and Jacob Rohrer as administrator of Levi N Booher, deceased, stating, in substance:
    That on the 5th of November, 1852, the probate court of Miami ■county appointed John H. Morrison guardian of John *S. Favorite, Thomas S. Favorite, Martha J. Favorite, Harriet A. Favorite, and Uriah J. Favorite, the plaintiff, then nine years of age. That said guardian entered into bond, as required by law, in the •sum of $17,000, with William K. Cromer, Robert Morrison, and Levi N. Booher, his sureties. That the bond was upon the condition that the guardian should discharge with fidelity the trust reposed in him, and render an accurate statement of his transactions, with a just account of the profits arising and accruing from the real and personal estate of his wards, and deliver up the same to •the court when thereunto required.
    That on the 12th of November, 1857, John H. Morrison settled his accounts as guardian, and there was then found due the plaintiff the sum of $1,637.71.
    That in June, 1857, the guardian removed from his residence in Miami county to the territory of Nebraska, where he then located •and still remains. That since his residence in said territory the guardian has refused and neglected to render any statement of his •transactions as guardian to the probate court; and that the plaintiff has been unable to demand of the guardian the amount due him.
    That on the — day of March, 1855, Booher died, and on the 15th •of April, 1855, Rohrer was duly appointed administrator upon his estate, and is still acting as such, with assets in his hands to pay -debts of the estate. '
    That on the 18th of March, 1863, the plaintiff called upon Rohrer, as administrator, and notified him of his claim; and that the administrator waived the authentication of the claim, but declined to> pay it unless a judgment was rendered against him as administrator in the proper court.
    Judgment is asked against the defendants for the $1,637.71 and interest.
    Summons was served upon Cromer and Kohrer, but returned' “not found ” as to the Morrisons.
    At the April term, 1863, of the common pleas,' judgment was-taken by default against Cromer, and Bohrer, as administrator, but was afterward set aside as to the latter, and leave was given him to answer.
    *On August 26, 1863, Bohrer, as administrator, answered, setting up the limitation of four years.
    To this answer the plaintiff demurred.
    Afterward, on April 12, 1864, the plaintiff replied to Bohrer’s-’ answer. The reply denies that Bohrer had in his hands sufficient funds to satisfy the just claims against the estate; and alleges that in 1856 or 1857 Bohrer and Thomas Bamsey, guardian of the heirs of Booher, finding the personal estate of Booher inadequate to the-payment of the debts of his estate, in order to preserve to the heirs-the real estate left by Booher, it was agreed between Bamsey, as guardian, and. Bohrer, as administrator, that Bamsey should, out of the rents of the real estate, as far as they would reach, pay the debts of the estate, the personal assets having been exhausted by the administrator, and thus save the real estate from administrator’s sale. That in accordance with this agreement, Bohrer from that time suspended all action in the execution of his trust, until the 2d of February, 1863. That Bamsey raised large sums of money out of the rents of the real estate, to wit, over $5,000, and paid out the same in discharge of debts of the estate, and which was approved and recognized by Bohrer, as administrator. That the sums so paid by Bamsey not being adequate to discharge the liabilities of the estate, Bohrer, on the 2d of February, 1863, filed his petition in the probate court of Miami county, for the sale of the real estate descended to Booher’s heirs. That such proceedings were bad that on the 28th of March, 1863, the real estate was sold by him for a sum exceeding $17,000, and that the same came into Bohrer’s hands, as administrator, and- was assets for the payment qf thq debts of the estate,
    
      To this reply the defendant demurred, and the demurrer was sustained, and judgment rendered for the administrator.
    The district court, on error, affirmed this judgment.
    The plaintiff now seeks to reverse both judgments.
    
      Sellers & Thomas, and J. Pearson, for plaintiff in error:
    Claims on official bonds of guardians, against an estate, do not come within the meaning of “ any creditor ” of the deceased, mentioned in section 101 (S. & C. 585) of the administration %ct. Webster’s Dic. “Creditor;” Swan’s Stat. 444; S. & C. 678, sec. 36; Gordon v. Gibbs, 3 Smed. & Marsh. 473. The statute has reference only to private debts contracted by the deceased — private dealings between the deceased and other individuals, arising out of matters of private contract. An official bond is not for a debt due, but imposes a legal liability on the happening of a contingency. When given, it constituted no claim within the meaning of the statute; nor did it afterward, as it conferred only a right to recover unliquidated damages.
    The grant of administration is matter of record, and so is the bond. Such a claim was always in a state of presentation, being a matter of record and notice to every one, even if presentation was necessary. Miller, Adm’r, v. Helm, 2 Smed. & Marsh. 687
    No difference in principle is perceived between the bonds of administrators and those of guardians.
    If this view of the question be correct, then the administrator can only protect bimself under the general statute of limitations.
    It was legal and proper for the administrator and guardian of the heirs of Booher to enter into the alleged contract for the purpose of saving the lands for the heirs. S. & C. 590, sec. 127; 9 Ohio, 197; 6 Ohio, 227.
    Neither the administrator nor heirs of Booher ought to be permitted to take advantage of the lapse of time required in operating under that contract for the benefit of the heirs and the estate.
    But in order that the administrator may plead the statute of limitations successfully, he ought to show that he strictly complied with the law on his part. Having exhausted the personal assets soon after his appointment, leaving debts unpaid, it was his duty to apply for the sale of real estate. Instead of doing that, he and the guardian of the heirs made the contract to raise money otherwise to pay debts. If creditors for whom such sale ought to have been made choose to affirm the contract, the administrator and heirs for whose benefit it was made can not now repudiate it. See 4 Ohio, 316, 317; 8 Ohio, 220.
    *The object of the four years’ limitation is for securing an early and final settlement of estates, so that the residuum may be distributed to the heirs. 20 Pick. 8. The object of the law in this case was not accomplished, simply because of the contract between the administrator and guardian.
    The assets the administrator now has on hand, arising from the sale of the real estate, are liable to the payment of debts, etc. S. & C. 588, 589, sees. 117,119. And having come to the hands of the administrator after the expiration of four years, he is to apply the same as if they had been received within the four years, for the benefit of any creditor, etc. S. & C. 586, sec. 102; Holland v. Cruft, 20 Pick. 334; 2 Ohio St. 159.
    
      J. T. Janvier, for defendant in error:
    The original action was not brought within four years after the administrator filed his bond and published notice of his appointment, nor within one year after the cause of action accrued. S. & C. 585, sec. 101.
    Nor will infancy prevent the bar of the statute. Cochran v. Taylor, 13 Ohio St. 385; Hall v. Bumstead, 20 Pick. 8.
    The plaintiff’s claim is within the statute. The guardian’s bond was for the benefit of the plaintiff, having all the elements of an individual and private claim. 13 Ohio St. 385; 20 Pick. 8; Phillips v. Rogers, 12 Met. 405.
    The agreement between the administrator and the guardian of Booher’s heirs does not affect the plaintiff’s case. It could not, for a moment, suspend his right of action, nor on the recovery of a judgment could it impede or delay its collection from the administrator.
    There is no well founded distinction between private claims and those which pertain to judicial proceedings, and are on file in some court of record.
    The plaintiff’s claim is not for unliquidated damages, but for a definite and fixed sum found due to him on settlement by his guardian. As to the right of action upon a guardian’s bond, even before liquidation of the amount due, the question is settled in Ohio v. Humphrey, 8 Ohio, 224.
    
      The proceeds of the sale of real estate by the administrator are-*not new assets within the meaning of section 102, nor in any just sense. Real estate, under our administration laws, is-always assets in the hands of the administrator, to the extent that, it may be required to pay debts.'
    October 8,1857, the plaintiff was fourteen years of age. Morrison-then, by operation of law, ceased to be his guardian. The amendatory act of 1858 did not revive a relation so terminated. Campbell v. English, Wright, 119 ; Perry’s Lessee v. Brainard, 11 Ohio, 442. Ever since that peripd the plaintiff has had a right of action against these parties; and, on the authorities cited, the disability of infancy has no effect on the running of the four years’ statute of limitations'in favor of executors and administrators.
   White, J.

The first and principal question argued in this caséis, whether the bar created by section 103 of the act for the settlement of estates, passed March 23, 1840, applies to actions founded on bonds of guardians, and obligations of like character ?

We are of opinion that it does.

Our statute for the settlement of estates was taken, principally, from the statute of Massachusetts on the same subject, and is founded upon a Similar policy.

The section in question is a transcript of one of the sections of the Massachusetts statute, and is as follows:

“ No executor or administrator, after having given notice of his appointment, as provided in the eighty-first section of this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within four years from the time of his giving bond as aforesaid, excepting,” etc.

In this section the term creditor is used in a generic sense, and includes all persons having rights in action against the decedent. The section is founded on reasons of public policy; and its object is to promote the early and final settlement of estates, and to enable distribution to be' made of the residuum among those entitled, freed from charges and incumbrances.

Prior to our adoption of this statute it had received a construction in Massachusetts, by which it was held to include this class of liabilities; and this construction has ever since *been adhered to in that state. Hall v. Bumstead, 20 Pick. 2 ; Holden v. Fletcher, 6 Cush. 255 ; Phillips v. Rogers, 12 Met. 412.

It is reasonable to suppose that the legislature, in adopting this provision, did so in view of the construction which had been put upon it, and with the intention that it should receive the same construction here. This construction' being warranted by the language as well as required by the policy of the statute, ought, we think, to be adopted by us. Angell on Lim., sec. 170.

Nor will the fact that the creditor is under the disability of infancy save him from the operation of the bar which the statute interposes.

The general rule in regard to the application of statutes of limitation is, that all persons, whether under disability or not, are barred by them, unless excepted from their operation by a saving clause. General words of a statute are to receive a general construction, and unless there is found in the statute itself some ground for restraining it, it can not be restrained. Angelí on Lim., sec. 194.

The same principle of public policy that requires the statute to embrace all subjects of demand, also requires that it should be held to embrace all classes of creditors. Accordingly it was held in Massachusetts, before the adoption of the statute in this state, that, for the purpose of enforcing the policy of the statute, it was an absolute bar ; and that the fact that the plaintiff had been under the disability of infancy during the time the estate of the deceased was under administration, did not prevent his claim from being barred by the lapse of time prescribed by the statute. Angell on Lim., sec. 194; Hall v. Bumstead, supra. And, in the case last cited, Shaw, O. J., said : “ That no such disability had ever been allowed, as an avoidance of this statute.”

The section of the statute already quoted, was modified by the aot of February 5,1847 (S. & C. Stat. 614; 2 Curw. Stat. 1326), so that on causes of action which accrued after the four years, suits may be brought within one year after the cause of action accrued, and before the estate has been fully administered; and provided that no cause of action ^should be barred by lapse of time until one year after it accrued.

It is assumed by the counsel of both parties, that the petition in this case shows a cause of action. This assumption is at least questionable.

The petition is not founded on an ordinary right of action, either of a legal or equitable nature, existing in favor of a minor. The notion is brought against the administrator of a surety on the offi cial bond of the plaintiff’s guardian; and the question is, whether there has been a breach of the condition of the bond; for, without such breach, there would be no cause of action against the defend - ant.

The bond is in accordance with the statute in force at the time it was given, and is conditioned that the guardian will discharge with fidelity the trust reposed in him, and render an accurate statement of his transactions, with a just account of the profits arising from the real and personal estate of his ward, and for delivering up the same to the court when thereunto required.

The guardianship expired, under the statute governing this ease; on the arrival of the plaintiff at fourteen years of age (Lessee of Perry v. Brainard, 11 Ohio, 442), which, according to the record, was October 8, 1857.

No objection is made to the settlement of the guardian. On the contrary, the action is brought to recover the balance found in his hands by the settlement.

The alleged breach consists in the failure of the administrator of the surety to pay over to the attorney of the plaintiff, who was still in his minority, the money found by the settlement in the hands of the guardian.

The payment of the money to the minor, or his attorney, would certainly not have been in performance of the condition of the bond; and if the making of the payment would not have been in. performance of the condition, it is not easily perceived how the failure to make such payment could constitute a breach of the bond.

True, it is stated that Morrison, the guardian, had removed from the state; but this seems only to be stated as an excuse for not demanding the money of the principal, and not as a *substantive cause of action. It is, perhaps, questionable whether, under the law as it stood at the expiration of this guardianship, the mere removal from the state would have vacated this guardianship, or constituted a breach of the bond. See Pedan v. Robb’s Adm’r, 8 Ohio, 229, and section eight of the act of February 23, 1846, “ to amend the act for the appointment of guardians. 2 Curwen’s Stat. 1238.

In the absence of an order of the court on the subject, the obligation of the guardian’s bond, in respect to paying over the money of the ward, would seem to extend no further than to require the .guardian to pay to the ward on his arriving at age, or, in case of -the termination of the guardianship before that time, to some other appointed guardian. See, on this subject, Western Law Journal, vol. 10, 163-168.

But notwithstanding these views, and supposing the action to-have been brought by the plaintiff after his arriving at 'age, or by another guardian instead of a next friend, the question would still arise, whether the four years’ bar prescribed by the statute in question, would not still apply, on the ground that, although no formal cause of action accrued on the bond within the four years, yet, as it was competent for the plaintiff, during his minority, to have perfected his cause of action, at any time, by having a guardian appointed and a demand made, that his failure to do so would not place his right of action arising on the bond on any higher footing, as respects the limitation in question, than any other right of action existing in his favor.

This was the view taken by the learned judge delivering the opinion in Hall v. Bumstead, which was approved, by Peck, J., in Cochran et al. v. Taylor, 13 Ohio St. 385.

But whether we view this case as presented and argued by counsel, viz., as showing a cause of action which, if not barred, the-plaintiff could enforce by his next friend; or regard the petition as' defective in not showing a breach of the bond; in either case the judgment rendered in the court below in favor of' the defendant must be affirmed.

If the petition shows a cause of action which could be enforced by the plaintiff, during his minority without a guardian, *by his next friend, it must have accrued at the termination of the guardianship in 1857. More than four years would therefore have elapsed after this time, and after notice of the appointment of the defendant as administrator, before the commencement of the suit, and the action would be barred.

If the petition does not show a breach of the bond, the plaintiff must, of course, fail for want of a cause of action.

If the plaintiff, after he became of age, had brought the action in his own name, or if, during his minority, the action had been brought by a duly constituted guardian, and if the petition had shown a breach of the bond, the question would then have arisen whether the four years’ limitation ran against him during his minority; while he had no guardian, and before his cause of action had been perfected by a breach of the bond. The present case-does not call for a decision of this question, and we pass it until its-decision shall be rendered necessary.

The remaining claim made by the counsel of the plaintiff in. error, which we will notice, is founded on the facts set up in the-reply. It is insisted that the rents, and the proceeds of the sale of the real estate, in the hands of the administrator, constitute new' assets within the meaning of section one hundred and four of the act for the settlement of estates, and that the claim of the plaintiff' as to these assets, supposing it to be otherwise barred, is excepted from the operation of the four years’ limitation.

This view is clearly erroneous. Assets are thus defined by Bouvier: “The property in the hands of an heir, executor, administrator, or trustee, which is legally or equitably chargeable with the-obligations which such heir, executor, administrator, or trustee is, as such, required to discharge.” “Assets in hand, is such property as at once come to the executor, or other trustee, for the purpose-of satisfying claims against him- as such.”

By our law, the real estate of the decedent is made assets provisionally in the hands of the administrator, that is, it is made his duty to subject it to the payment of the debts whenever the personalty proves insufficient. It is as available to the administrator-for the payment of debts, when a necessity ^exists. for its application, as the personalty; the only difference between the two kinds of property, in this respect, being as to the order of the-appropriation.

The proceeds of land sold in the ordinary course of administration, and of which the decedent was the acknowledged owner at the time of his death, or of rents received by the administrator from the heirs, for the purpose of paying debts, can not be considered as new assets within the meaning of the section referred to.

If the view insisted upon by the plaintiff’s counsel were to prevail, claims barred by the statute, and for the payment of which no-order for the sale of real estate could be obtained, would be entitled to share in the proceeds of the sales of real estate actually ordered, and which could only be ordered for the payment of claims which were not barred.

Judgment affirmed,.

Day, C. J., and Welch, Brinkerhoee, and Scott, JJ., concurred..  