
    HUNTIGNTON, Guard. v. GLOBE INDEMNITY CO.
    Franklin Common Pleas Court.
    No. 102141.
    Decided Oct. 14, 1927.
    First Publication of this Opinion.
    Syllabus by the Court.
    1139. SURETY BONDS — 593. Guardian and Ward—
    1. Probate Court has power to demand conditions in bond beyond requirements of Statute when it. deems same necessary for safety of ward’s estate.
    2. Condition in bond cannot be limited by terms of statute under which it is given.
    3. Where, in proceedings to sell real estate, guardian gives additional general bond, amount recoverable, not fixed by sum realized from sale.
    
      4. A reinvestment of proceeds of sale of real estate under order of Court does not relieve surety if fund is not finally accounted for and paid over to proper person. (Sec. 10933 GC.)
    Heard of Demurrer.
    Demurrer sustained.
    Frank M. Raymund and Hugh Huntington, Columbus, for Huntington.
    Vorys, Sater, Seymour & Pease, Columbus, for Globe Indemnity Co.
    STATEMENT OF FACTS.
    Josephine Howard was appointed guardian of the estate of Charles E. Kinkade, a minor. She gave a general guardian’s bond with the defendant, the Globe Indemnity Co., as surety in the sum of $3,000. Later she filed a petition in the Probate Court for selling real estate owned by the ward. At that time, an additional bond was filed in the Probate Court in the sum of $4,200 with herself as principal and the Globe Indemnity Co. as surety. This additional bond was in compliance with an order of-the court, as recited in the bond. This bond was conditioned: “That if the said Josephine Howard shall faithfully discharge all of her duties as such guardian, as required by law, then this obligation to be void; otherwise to remain in full force.”
    The real estate was sold, the sale was confirmed and the deed executed and delivered.
    It is alleged that, following said sale, large sums of money were received by Josephine Howard from the sale of real estate, and otherwise, while acting as guardian; that she embezzled and converted to her own use the sum of $5,722.23 and has failed and refused propei ly to account for and turn over said ' sum to her successor. That upon exceptions to her account filed by her surety the' court held the sum of $5,722.23 and interest was due the ward from the guardian*; that said guardian has failed to comply with conditions of the bond, and failed faithfully to discharge her duties as guardian, that therefore the conditions of the bond have become absolute. This action is bi ought to enforce the obligation of the surety.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

KING, J.

The defendant, in its first defense to second cause of action, in substance, alleges and claims that the bond executed on the 29th of May, 1922, being the additional bond required by court, was given under authority of 10950 GC. the provisions of which regulate the proceedings for sale of real estate by guardians; that the terms and conditions set forth in the said statute, to-wit: “Conditioned fob the faithful discharge of his duties and the payment of and accounting for all monies arising from such sale” are conditions which the Court shall read into the bond given on the 29th, that, therefore, the liability of the Surety Co. on said bond is limited to a faithful discharge of her duties, and accounting only for the proceeds, with reference to the sale <3f real estate, that the guardian reinvested the proceeds 'in other real estate and thereby fulfilled her duties. In second defense, the Surety claims that, in any event, it is liable only for the proceeds of the sale, to-wit, $2,100.

The condition of the bond usually giveil in the sale of real estate, pursuant to 10950 GC., it as follows: to-wit:

“Now therefore, if the said-shall faithfully discharge his duties, as guardian as aforesaid, and shall' faithfully, and according to law, pay oyer and account for all the monies arising from such sale, then this obligation to be void, otherwise to remain in full force.”

But the terms and conditions of the bond actually given are quite different. The conditions of the bond executed by order of-court, on the 29th of May, are as follows: to-wit:

“Now, if said Josephine H. Howard shall faithfully discharge all of her duties, as such guardian, as is required by law, this obligation to be void, otherwise to íemain in full force.”

In this, connection the law prescribing the duties of Guardians, provides:

“At the expiration o‘f his trust fully to account, ior and pay over, to the proper person, all the estate of the minor in his hands.” GC. 10933.

There is nothing upon the face of the bond, in the recitals or elsewhere, to indicate that said bond was to be limited in its application to the real estate transaction. The terms and conditions thereof are terms and conditions of general guardian bonds.

Counsel for defendant contend that, notwithstanding the effect of the terms and conditions stipulated and agreed upon, the meaning is to be interpreted by the provisions of 10950 GC. that it to say, although the bond given is, in effect, a general guardian’s bond by virtue of 10960 GC. the liability thereon is limited to accounting faithfully for the proceeds of the sale of real estate. In this we do not concur. The conditions of the bond, if • construed as written, afford, in the instant case, ample protection to the minor’s estate. That is the very purpose of the bond. When the court, in furtherance of that object, requires such a bond, the provisions of the statute should not be interpreted to defeat that purpose.

It is true that the conditions imposed by the bond are broader than the statute. However, they were agreed to by the Surety Co., and a consideration paid. To permit the defendant to avoid the obligation of such conditions by such an interpretation of 10960 GC. as is urged would violate the terms and conditions and the very purpose of the bond as well .as the object sought by the legislature in such enactment, namely, the preservation of the ward’s . estate.

Let the demurrer to the first and second defenses of the second amended answer be sustained.

*Note: See Kinkade’s Trusteeship, 23 Oh. Ap. 274; 5 Abs. 339.  