
    Martin, Appellant, vs. Davis and another, Respondents.
    
      October 5
    
    
      October 20, 1891.
    
    
      Guardian and ward: Payment by guardian to successor: Assumption of liability by second guardian: Suretyship.
    
    1. B. was guardian of E. and G., minor brothers, and invested their money in the dry goods business. When E. became of age he took the stock of goods and the business, releasing his claim .against B. and agreeing to assume B.’s liability as guardian of G. Afterwards B. resigned his guardianship of G., and E. was appointed guardian, and filed an inventory charging himself with having received from B. the amount due to G., and gave B. a receipt therefor. Held, that E.’s agreement to assume the liability of B. to G. created a valid obligation on his part, which was not affected by .the statute of frauds. If assent on the part of G. was necessary, his prosecution of the claim on the settlement of E.’s final account as guardian was sufficient to make E.’s liability absolute; and this liability is covered by his bond as guardian.
    2. The former guardian, B., not having turned over to E. any of the property of G., his liability and that of the sureties on his bond was-.not affected by the transaction. ' •
    
      APPEAL from the Circuit Court for Bichlcmd County.
    There is no material dispute as to the facts of the case.. Eespondents were sureties upon the bond of one Edward E. Martin, as guardian of the appellant. Said guardian was appointed and the bond given September 23, 1886. Prior to that date, and from April 23, 1884, one J. 0. Bancroft had been guardian of the appellant. Bancroft, during his guardianship, received about $900 in cash, the property of his said ward, which he invested in the dry goods business. Bancroft was also guardian of Edward E. Martin, and had received about $2,900 in cash, the property of said Edward, which was also invested by him in the dry goods business with the $900 belonging to George.
    
    Edward became of age in August, 1885, and immediately thereafter Bancroft turned over to Edward the dry goods stock and business, Edward accepting the same in settlement of his own claim, and verbally agreeing to assume Bancroft’s liability as guardian to George. This stock was then valued by the parties at $5,000, subject to some debts, the exact amount of which does not appear, but which seems to have been about $1,000. Bancroft remained guardian of George until September, 1886, when he resigned, and Edward was appointed. Immediately upon his appointment Edward filed an inventory in the county court, in which he charged himself with having received from Bancroft, for his ward, $912.72, and gave a receipt to Bancroft for that sum. In fact, however, he had received nothing from Bancroft except the stock of goods, more than a year before. Edward carried on the dry goods business until December, 1886, when he failed, and the stock was- seized by his creditors, and sold on execution.
    George, the appellant, became of age May 16, 1888. In October, 1888, Edward filed his final account of his guardianship, in which he charged himself with $912.72, according to his inventory, and simple interest thereon, amounting in all to $1,018.87, and claimed no credits. Upon the hear- . ing of that account, the respondents appeared and objected to its allowance, but the county court adjudged that the guardian bad received the sum with which he had charged himself, and directed him to pay it to the ward. From this judgment the respondents appealed to the circuit court, which reversed the judgment of the county court as against the sureties, and found that the guardian’s acknowledgment of the receipt of $912.72 from Bancroft was collusive and fraudulent as to the sureties, and that the guardian had in fact received no property of his ward, and was not chargeable with any sum for which his sureties were responsible. From this judgment Qeorge appeals.
    For the appellant there was a brief by I, H. Bancroft, and oral argument by Mr. Bancroft and Mr. II. W. CJvy-noweth.
    
    For the respondents there was a brief by James H. Miner and P. II. Fay, and oral argument by Mr. Miner.
    
   WiNslow, J.

¥e think the circuit judge was right in his conclusion that Edward had never received any property of his ward. The former guardian, Bancroft, had no .right to put his ward’s money into trade. When he did so he converted his ward’s estate and became personally liable for the amount. The goods bought did not become the property of the ward. The ward,'when he became of age, could demand his money, or he could elect to take the property which his money had, purchased, if still in the hands cf his guardian, together with the profits of the trade, if any. Until such election, the title to the property purchased was in the guardian. It follows, logically, that when J. C. Bancroft turned over this stock of goods to Edward Martin, he did not turn over to him any of his ward’s property.

There is another aspect of the case, however, which we think was overlooked by the circuit court. It is a well-settled principle of law that when one assumes the office of guardian who is at the time indebted to his ward, the indebtedness becomes assets in his hands, to be accounted for as property. Winship v. Bass, 12 Mass. 203; Neill v. Neill, 31 Miss. 36; Griffin v. Bonham, 9 Rich. Eq. 77. Bancroft owned this "stock of goods. He, in .effect, sold them to Edward in consideration of a release of his liability as guardian of Edward, and the assumption by Edward of Bancroft’s liability to George. This created a valid obligartion on Edward’s part to pay George, which was not affected by the statute of frauds. Hoile v. Bailey, 58 Wis. 434.

, If assent on the part of George was necessary in order to make Edward’s obligation binding, still there was, at the time this bond was given, an inchoate or contingent liability on the part of Edward, subject to be made absolute by George when he became of age. Bid not the bond cover this liability of the principal? It provides that Edward shall pay over and deliver all moneys, estate, and effects remaining in his hands, or due on final settlement, to the person or persons legally entitled thereto. By prosecuting this claim the ward has certainly assented to the transaction between Edward and Bancroft. He has made the moneys in question due from his guardian on final settlement and covered by the bond. It is not to be understood that by this decision we have held the first guardian, Bancroft, or his sureties, discharged from liability. Their liability to the ward was not affected by the transaction. The ward simply acquired an additional remedy against Edward and his bondsmen.

By the Court.- — The judgment of the circuit court is reversed, and the action is remanded to the circuit- court with diiections to affirm the judgment of the county court.  