
    Tuttle v. Northrop.
    
      Guardian and ward — Liability of substituted surety for previous sale of real estate by guardian.
    
    1. On December 28,1872, Northrop was appointed guardian of an imbecile; he gave bond with Belden and Tice as sureties, and entered upon his trust. At sundry times thereafter, by order of court, he sold real estate . of his ward, and at each sale gave the special bond required by law. He received in cash the proceeds of the land sales, and he also received a small amount for the rents of real estate. After the proceeds and amounts were so received, Belden was released as surety, and Northrop gave a new bond, with Tice and Taylor as sureties, and he continued in his trust. Northrop resigned, and settled his accounts with the court, which found a large amount due from him to his ward, and ordered the same paid to his successor. Thereupon Northrop paid the greater part of the amount due, hut he made default as to the residue, and his successor brought suit on the last general bond, against Northrop as principal, and Tice and Taylor as sureties. Held, The sureties on such bond are liable for the unpaid residue, whether or not the same is partly or entire]}’- the proceeds of the sale of such real estate.
    Reserved in the District Court of Lake county.
    On December 28, 1872, Albert JB. Northrop was appointed guardian of Emily Belden, an imbecile, and gave bond, with C. Tice and A. N. Belden sureties. On September 29, 1877, Belden applied to the court to be released under section 6273 of the Revised Statutes, and on October 13., 1877, be was released upon Northrop giving the bond, in suit, which is as follows:
    “Know all men hv these presents: That we, A. B. Northrop, as principal, O. Tice and S. B. Taylor as'sureties, are held and firmly bound unto the state of Ohio in the sum of eight thousaud dollars, for the payment of which we hereby jointly and severally bind ourselves, our heirs, executors and administrators. Sealed with our seals and dated at Painesville, this 13th day of October, a. d., 1877. The condition of the above obligation is such that, whereas, the above bound A. B. Northrop has heretofore been appointed by the probate court of Lake county, Ohio, guardian of the person and estate of Emily Belden, a person of unsound mind, of Willoughby, in said county, which appointment the said A. B. Northrop has accepted. Now, if the said A. B. Northrop shall faithfully discharge all of his duties as such guardian as is required by law, then the above obligation to be void; otherwise to remain in full force. A. B. Northrop, [seal.]
    C. Tice, [seal.]
    S. B. Taylor, [seal.] ”
    Thereupon Northrop continued in the guardianship until March 5, 1879, when he resigned, and his accounts were settled, and $9,443.44 was found due from him, as guardian, to his ward, -which was ordered paid to his successor. He paid $7,365.28, January 3, 1880, and failed to pay the residue and interest, $2,503.11, for which this action is brought on the above bond.
    Northrop became insolvent and he did not answer. Several matters in the pleadings are not before this court. The matters of defense, relied upon by Tice and Taylor, are as follows: That whatever rents and profits of the ward’s real estate that came into the guardian’s hands were paid and expended by him in full for taxes on the real estate, and for current expenses of and for the support of his ward prior to the giving of the bond in suit.
    And defendants further say that no part of the amount found by the probate court, to wit, of the sum of $9,443,44, to be due from Northrop, as such guardian, on the settlement of his account, in March, 1879, was either directly or indirectly, in whole or in any part thereof, made up of or comprised any rents or profits which came to the hands of Northrop, as guardian, from the real estate of the ward.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, on the 12th day of December, 1878, the sum of $6,000, which was derived entirely from the sale of real estate of the ward under the order of the probate court, made on the 11th day of December, 1873, in a proceeding to sell real estate then pending in said court. That in the proceeding to sell real estate, a special bond was required and executed by the guardian, according to law, for the sum of $12,000, with J. S. Ellen and G. W. Storm as his sureties, and was duly accepted and approved by the court.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, credits to the amount of $2,000, on the 21st day of June, 1875, which was wholly derived from, and which was the proceeds of the sale of certain other real estate of his ward, under another and further order of the probate court, mader" June 21, 1875, in a certain other proceeding commenced by the guardian to sell the real estate of his ward.
    That in said proceeding a special bond in the sum of $4,000 was required by the court and executed by the guardian, according to law, with G. O. Townsen and Thomas J. Bradbeer as his sureties, and which bond was duly accepted and approved by the probate court.
    And the defendants further say that Northrop, as such guardian, received and there came into his hands, on the 17th day of August, 1876, the sum of $8,500 in cash, which was wholly derived from, and vdiich was, the proceeds of the sale of certain other real estate of his ward, under the order of the probate court, made August 15,1876, in a certain other proceeding commenced by the guardian to sell the real estate of his ward.
    That in the proceeding a special bond in the sum of $17,000 was required by the court and executed by the guardian, according to law, with Ransom Kennedy and Gr. "W-. Storm as his sureties, which bond was duly accepted and approved by the probate court.
    And further answering, the defendants say that said sums thus derived from the sale of real estate, and -the rents and profits, were and are the only assets and property of said ward which came into the hauds of Albert B. Northrop during the whole period of his guardianship. And that the entire sum of $9,443.44, found due from and ordered by the probate court to be paid by Northrop, as such guardian, in 1879, in March, and the entire balance of $2,503.11, sued for in this action, is made up and composed wholly of the proceeds of the sale of real estate. ■ It is admitted that the sum of fV,365.28 was paid over to the'.plaintiff by Northrop, and that there is still due and unpaid to plaintiff, as guardian of Emily Belden, from Northrop, the sum of $2,503.11.
    And the defendants say that the bond in suit, signed by them, was signed and executed by them as the sureties of Albert B. Northrop, who was and is the principal therein; That the bond is a general and not a special bond, and covers and contemplates only a breach and violation of the general duties of such guardian, and not any of the special duties by law imposed upon him on the sale of real estate, and covers and contemplates only a failure of such guardian to perform his duties' and pay over moneys derived from the sale of personal estate and rents and profits which came into his hands, and does not contemplate or embrace any failure to pay over moneys derived from the sale of real estate, or any breach of his duty in that behalf; but that the remedy of said plaintiff guardian, if any, is upon the bond severally executed in the proceedings to sell the real estate of said ward, by Northrop, as her guardian.
    Demurrers to these answers were overruled by the court of common pleas, and judgment for costs was rendered for Tice and Taylor. On proceedings in error the district court reserved the same for decision here.
    
      
      Perry Bosworth and W. D. Pudney, for plaintiff in error.
    
      Alvord ¡j¡¡ Alvord and Morrow $ Morrow, for defendants in error.
   Eollett, J.

Are Tice and Taylor liable on this bond for the $2,503.11 and interest due from Northrop to his ward ? The amount due is not disputed. It is admitted to be a part of the proceeds of real estate sold by order of court; but from which sale the guardian obtained this amount due, we are not told. These sureties do say, that there came into Northrop’s hands, as guardian, on August 17, 1876, the sum of $8,500 in cash. This was from the last sale of land. He may have received thereafter some small sums of money for rent.

This bond was given October 13, 1877, and after the property bad been changed from realty to personalty. There is no statute of Ohio that requires such proceeds to be regarded as realty for any purpose.

In ease of sale by an executor or an administrator to pay debts, section 6171 of Revised Statutes requires “ the surplus of the proceeds of the sale remaining on the final settlement of the account, shall be considered as real estate, and shall be disposed of accordingly.” And though this surplus goes to the heirs in the line that real estate would go, such proceeds are personalty and are held as personalty by the heir and as such pass from such heir. See Pence v. Pence, 11 Ohio St. 290, and Oxenden v. Lord Compton, 2 Vesey, Jr. 69.

On his final settlement, Northrop must have had “ in his hands ” at least the $7,365.28, which the'sureties admit he paid to his successor. And'as this payment was made on the entire amount due, it may be applied, in the interests of the beneficiary, to. the payment of any amount not in his hands at settlement. So this residue sued for was received by Northrop in cash,, and so remained in his hands on giving this bond and an his settlement. Sureties are held by the terms of the bond.

These sureties bound themselves in the sum of $8,000, with the condition : “Now if the said A. B. Northrop shall faithfully discharge all of his duties as such guardian as is required by law, then the above obligation to be void; otherwise to remain in full force.”

Among other things it “ is required by law” (sections 6269, 6304 of the Revised Statutes) of the guardian that: “At the expiration of his trust, fully to account for and pay over to the proper person all of the estate of his ward remaining in his hands.” This language is very comprehensive, and includes whatever may be a part of an estate, whether derived from personalty or realty. Whatever is the nature or source of any part of the estate, the guardian is not required to keep separate accounts, but he is required to render “ an account of the receipts and expenditures of such guardian; ”• one account of all receipts and all paid out.

We have been referred to the decisions of courts in other states; but their laws and decisions can not control our statutes. In some states, as in Massachusetts, the statutes have been changed so as to require in a guardian’s general bond the specific condition, “ to render an account of the proceeds of all real estate sold by him for investment, and at the expiration of his trust pay the same over,” etc. The bond in this case includes all such proceeds.

There is no question before us that involves the extent of the liability secured by each special bond, or what, if any security, such special bonds afford the ward or the general bondsman.

And this case does not involve the proceeds of land sold after the general bond was given.

The ward or the present guardian can not know the amount due until the former guardian has settled his accounts.

This court has held, in Newton v. Hammond, 38 Ohio St. 430: “A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by tbe probate court on tbe settlement of the guardian’s final account.”

The plaintiff delayed suit until the amount due was so ascertained. There is no claim that any oue asked that other bondsmen should be made parties to the suit.

Tice and Taylor are liable on this bond to the plaintiff for the amount unpaid. The court erred in overruling plaintiff’s demurrer to the first defense in the answer of Taylor, and the demurrer to the first and second defenses in the answer of Tice.

Judgment reversed and cause remanded, with instructions to sustain the demurrers, and for further proceedings.  