
    Case 52—EQUITY—
    October 4.
    Brooks, Etc. v. Frontman, Trustee.
    APPEAL FROM BULLITT CIRCUIT COURT.
    1. Limitation—Action on Bond—Guardian and Ward—Life Estate in Guardian.—In an action by infants against a surety in a. bond executed by tbeir father who was their statutory guardian for the sale of lands in which the father owned a life estate and his children the reversion in fee, limitation does not begin to run in the father’s lifetime.
    2. Deduction of Value of Life Estate.—The guardian having-made an assignment for the benefit of creditors, the assignee was entitled to the guardian’s life estate and the beneficiaries in the bond to the residue. It was, therefore, error to render-judgment in favor of such beneficiaries without deducting the: value of th§ guardian’s life estate.
    JOHN S. JACKMAN for appellants.
    1. Limitation.—Under chapter 86, Revised Statutes, where the guardian of the infant, who was the 'father and tenant by the curtesy, petitioned for the sale of his ward’s real estate, and there was no order of court for reinvestment of the proceeds of sale, the surety on the bond is released, no action having been instituted on the bond by the infant within seven years after arrival at age. 2 Stanton, pp. 304-310, sec. 1, art. 3; secs. 2 and. 3 and sub-sec. 1, art. 6; sec. 2549 Ky. Stats, (same as Revised Statutes).
    2. Tenant by the curtesy, stands on the same footing as any other-life tenant, and the proceeds of sale should .have been reinvested. Malone v. Conn., 95 Ky„ 93.
    3. Interest.—In no event should there have been interest included in the judgment, as this would go to the life tenant, principal in the bond.
    CHARLES CARROLL for appellee.
    1. W. B. M. Brooks had a life estate in the land sold in the suit in -which the bond was given, and he had the same interest in the proceeds. 2 Stanton, Rev. Stats., art. 6, chap. 86, sec. 5.
    2. His interest was sold in that action. Brooks, Assignee v. Summers, &c., 18 Ky. Law Rep., 1026 (a case involving this title).
    3. Under the Revised Statutes, cited herein, it was not obligatory on. the court to order a reinvestment.
    .Same counsel in a petition foe a rehearing and response.
   JUDGE PAYNTER

delivered the opinion of TnE court.

As guardian of three of his infant children, W. B. M. Brooks instituted a suit to sell certain real estate owned by himself and his wards. He was entitled to the use -of the land during his life as tenant by the curtesy, and his wards owned the interest in remainder. A judgment was rendered in 1868, directing the land to be sold; but, before entering it, the court required the guardian to execute a bond, the terms of which were as required by the provisions of the Revised Statutes. The court did not ■make an order as to what disposition should be made of the proceeds of the sale at that time, nor did it do so until 1895. The money was held by the guardian subject to the ■order of the court. One of the infant children of W. B. M. Brooks died, and the two remaining wards, Emma and Anna, inherited that interest; and the proceeds of the sale, subject to the father’s use during his life, belonged to them. The land sold for- $5,511.82, one-half of which bein $2,755.91. W. B. M. Brooks made an assignment for Ike benefit of his creditors; and, in the action to settle the trust estate, there was paid to the trustee of the children of Emma (she having married and died) $1,660.30, to be held subject to his life estate.

This action was instituted by the trustee of the children of Emma King (nee Brooks) to recover of the representatives of the surety (he being dead), on the bond which the guardian had given, the sum of $1,095.60, the balance alleged to be due on account of the sale of the real estate. Emma, the mother of the children for whose benefit this suit was prosecuted, became twenty-one in July, 1873, married in October, 1882, and died in July, 1890. It 'is therefore claimed that her cause of action accrued when she arrived at the age of twenty-one. This contention is based upon the idea that this money should have been paid, to her on her arrival at that age, and that, therefore, the cause of action then accrued. It is true, the petition did not describe specifically the father’s interest in the land; yet it substantially alleges that the land belonged to him and his wards. The court did not in its order declare what were the respective rights of the father and his children in the land, or in the proceeds of its sale.

We are of the opinion that there was nothing in that proceedings which deprived the father of his right to the use of the land or its proceeds during his life. The court did not make an order as to the disposition of the fund, and, until the guardian disobeyed the order of the court with reference to the disposition of that fund, no cause of action accrued to the wards, even to have the money reinvested or held so as to secure to them its payment on his death.

We are of the opinion that no cause of action accrued to the mother of the children for whose benefit this action was prosecuted, and therefore the statute of limitation did not begin to run. The court gave judgment for the sum of $1,095.60 against the representatives of the surety in the bond. It was (in part), in effect, giving judgment against the surety in' the bond, in favor of the principal, for the. principal’s default. The principal in the bond was entitled to the use of the money during his life, and the trustee of the children was not entitled to' recover any interest which their father had in the fund. 'From the facts as they appear, the court should have ascertained the value of W. B. M. Brooks’ life estate in the fund, and have deducted that from the amount for which' judgment was given. W. B. M. Brooks was also entitled to the use of the $1,660.30, which seems to be in the hands ' of the trustee of the children. If the trustee of the children still holds that fund, then the value of W. < B. M. Brooks’ life estate in the $2,755.91 should be ascertained, and deducted from the amount which the plaintiff seeks to recover in this case. The condition of the $1,660.30 fund will have to be made to appear by appropriate pleadings before the court would know the exact amount which .should be credited in this proceeding, by reason of W. B. M. Brooks’ interest in that part of the fund. The judgment is reversed for proceedings consistent with this opinion.

On November 19th the following response to a petition for a rehearing was delivered by Judge Paynter: ■

In adjudicating the rights of the parties to this controversy, it does not require the consent of the life tenant or the trustee of the remaindermen to enable the court to determine them. It is said in the petition for rehearing that the life tenant has not given his consent that his interest in the fund shall be estimated in fixing the liability of the representatives of his surety; and also that the trustee for the remaindermen does not desire the value of the interest of the life tenant to be ascertained. Whilst this may be true, still the trustee comes into court, and seeks to fix the liability of the representatives of the surety in. the bond, and recover whatever that amount may be. In doing this, the duty is imposed upon the court to ascertain what that liability is. The representatives of the surety do not owe the remaindermen one cent on the bond on account of the interest of the principal in the bond. When the trustee of the remainder-men seeks to appropriate the fund,- he can only be adjudged the value of the interest of said remaindermen. The petition has been considered as the law requires, and overruled.  