
    McWhinney and Ryan v. Swisher.
    
      Liabihty of bond sureties — Sureties of guardian — Conflict of general bond and special bond — Section 6285, Revised Statutes— Liability of guardian for commingling fund.
    
    1. The liability of the sureties of a guardian upon his additional bond, given pursuant to section 6285, Revised Statutes, to account for the proceeds of the sale of real estate of his ward, cannot be extended beyond the terms of their undertaking, although the guardian commingles such proceeds with money of his ward derived from other sources for which he fails to account.
    2. Although the proceeds of the real estate are exceeded by gen* eral payments made by the guardian from such commingled fund, his sureties are liable, in an action by the ward after majority, for all of such proceeds, they being within the amount of the general balance found in the hands of the guardian.
    (Decided April 19, 1898.)
    ERROR to the Circuit Court of Darke county.
    Miss Swisher brought suit in the court of common pleas seeking to recover from the plaintiffs in error as sureties upon the additional bond of one Lowry who had been her guardian before she attained her majority. The facts alleged in her petition and their answer are uncontroverted.
    On the 14th day of February, 1884, Lowry was qualified as guardian of the persons and estates-of the minor children of Robert Swisher, deceased; who were the plaintiff, her brother and her sister, Lowry giving bond as required by section 6259, Revised Statutes, with sureties who are not here parties. Thereafter, January 31, 1885, Lowry, as guardian, filed his petition in the prohate court for authority to sell the real estate of his wards. Such authority was conferred by the probate court, the guardian giving the additional bond required by section 6285, Revised Statutes, with the plaintiffs in error as his sureties, the condition of the bond being:
    “Now, if the said J. N. Lowry, as guardian as aforesaid, shall well and faithfully discharge his duties as such guardian, and well and faithfully pay over to the proper person or persons, and account for all the money arising- from the sale of said real estate, according to law, then these presents to be void, otherwise to he and remain in full force and virtue in law.”
    Pursuant to the order of the probate court the guardian sold the real estate for a price of which there remained $876.75 after payment of dower, costs and taxes. One third of this amount was received ou account of the plaintiff. The guardian charged himself with the amount, but not in a separate account. He commingled said fund with moneys of his said wards received from other sources, the amount so received on account of the plaintiff being $3,900. Lowry died Nov. 8, 1891, and upon a settlement of his accounts in the probate court there was found due the plaintiff the sum of $2,061.71 after giving him credit for all payments made on her account. Before the commencement of the action the plaintiffs in error tendered to Miss Swisher $101.65 in full of the amount due her from them. The court of common pleas adjudged that she recover $99.90, and in view of their tender, that she he charged with the costs of the action. On her petition in error in the circuit court, it was adjudged upon the facts so admitted that she recover $519.30, that being her share of the proceeds of the sale of said real estate with interest thereon, and that she recover costs in both the circuit and the common pleas courts.
    The plaintiffs in error ask that the judgment of the circuit court be reversed and that of the court of common pleas affirmed.
    By a cross-petition in error Miss Swisher asks that upon the facts stated a judgment be rendered in her favor for the entire sum found to be in the hands of Lowry from whatever source derived.
    
      B. S. Frizell and Anderson da Bowman, for plaintiffs in error.
    We deny the liability of plaintiffs in error for any part of the money sought to be recovered on said special bond.
    We base this denial upon the claim that the obligation of the special bond of said guardian was designed simply to secure a faithful discharge of his duties in conducting such sale and a faithful payment and accounting of the money arising from such sale.
    This special bond was given under section 6285, as that section stood in February, 1885. It was given in a special proceeding. Such bond was necessary before such sale could be made. Without such bond the court was without jurisdiction to order a sale of the real estate. (See section 6285, as amended April 25, 1893, 90 O. L., 293.) The conditions of such bond are specially prescribed by this section, and relate wholly to the guardian’s duties in such proceedings to sell real estate. They in no way relate to his general duties. His general duties were covered by Ms bond given under section 6259, at Ms appointment in February, 1884. His general duties covered by tMs bond are defined in section 6269, and as defined in tMs section, covered every conceivable duty except the conduct of such proceedings for the sale of real estate. Tuttle v. Northrop, 44 Ohio St., 178; Woerner in his American Law of Guardianship, 133; Fay, Judge, v. Taylor et al., 11 Met., 529.
    The proceeds of said real estate amounting to $292.25, came into the hands of said guardian on March 10, 1886. From all other sources there came into his hands $3,900. The two funds were commingled and invested together. He was allowed $3,107.54 by way of credits for money paid out in behalf of his said ward, but which of said funds were used in making said payments in behalf of said ward for which said credit was allowed, or the proportion thereof, it is impossible to determine.
    In this view, if the special bond must answer for any part of the general balance due said ward, the general bond must bear the burden pro rata or in the proportion the two funds bear to each other.
    In other words, the sureties on the two bonds are liable for a pro rata share of the amount of the shortage in proportion to the amount of money derived from the land, compared with the aggregate of money received from all other sources. Yost et al. v. The State esc rel., 80 Ind., 350; Pummill, Guardian. v. Baurogartener et al., 3 NisiPrius Reports, 40; 4 Dec., 69.
    
      Meeker <& Gaskill and Allread <£¡ Teega/rden, for defendant in error.
    We consider it inappropriate to discuss the mathematics which might be applied by the court in fixing the equities between sureties on different bonds given by the same guardian.
    It is not conclusive against the liability upon one bond that some other bond may cover the same defalcation. The only question to be considered by the court, is whether the liability in question fairly falls within the terms of the bond sued upon. Foster, Admx., v. Wise, Admr., 46 Ohio St., 20.
    In determining whether the defalcation in question here is within the terms of the bond, we must remember that the object in giving such bonds is to protect the wards. McOoy v. Jacobi, 54 Ohio St., 447. A fair and liberal interpretation must be given to these bonds to carry out the objects and purposes of the statute. Walsh v. Miller, 51 Ohio St., 462.
    Section 6259 requires a general bond to be given by a guardian in double the estimated value of the personal estate and the rents of the real estate accruing during minority.
    Section 6258 requires the guardian to give a reql estate bond conditioned, ‘ ‘for the faithful discharge of his duties, and the faithful payment and accounting for all moneys arising from such sale according to law, ’ ’ and this bond is to be in double the amount of the appraised value of the real estate.
    The case of Wade v. Graham,, 4 Ohio St., 127, holding that an administrator’s general bond is also liable for the proceeds of real estate, is instructive on this point. We think, however, that the principle governing in this case is laid down in Tuttle v. Northrop, 44 Ohio St., 183.
    The proposition of counsel for plaintiffs in error that the sureties on the special bond are only liable for the proceeds of the real estate would require a special accounting in the probate court of the proceeds of the real estate. Neioton v. Hammond, 38 Ohio St., 436.
    It appears that the sureties upon the general bond are entirely insolvent, and whatever liability is to be held exclusively within the conditions of that bond the wards will be unable to enforce, by reason of such insolvency.
    If, therefore, the funds were commingled and the credits paid out of the commingled fund, then it is the duty of the court, in the interest of the beneficiaries, to charge the credit to the unsecured fund. Reed v. Board of Education, 39 Ohio St., 635; Gaston v. Braney, 11 Ohio St., 506.
    If the court is of the opinion that the above principle does not apply as to the application of credits, then we suggest that the credits ought, at least, to be applied upon the latest items, which would require their application to be made upon the personal fund. Beckel v. Pettiereio, 6 Ohio St., 247; Birdsellv. Heacock, 32 Ohio St., 177; Gainv. Dietz, 3 C. C., 612; 2C.D., 355; 18 Enc. of Law, 246.
   By the Court:

1. The defendant in error is not, upon the facts stated, entitled to judgment for more than the proceeds of the sale of the real estate since the liability of the sureties was, by the terms of the bond, limited to that.

2. She was entitled to the judgment rendered by the circuit court in her favor, because the proceeds of the sale of the real estate came into the hands of the guardian, and they were not by him accounted for. Although he had accounted for moneys in excess of her share of such proceeds, that could not, in a suit by her upon the additional bond, be presumed to have been, in whole or in part, on account' of such, proceeds. The case presents no question as to the rights of these sureties against those of the guardian upon his original bond.

Judgment affirmed.  