
    W. J. BELL AND WIFE, AND VIOLA P. HORN v. J. B. AND E. P. HORN ET AL.
    Nashville,
    January Term, 1876.
    APPEAL. By husband alone is not effective as to Ms nonappealing wife, when.
    Where a judgment is rendered against a guardian and the sureties on his guardian bond by a decree of the chancery court, an appeal by them “from so much of the decree as affects them” does not bring the case up as to the non-appealing wife of c-ne of the sureties against whom there was a decree that she was not entitled to any of the funds or rights therein as a conting-ent remainderman, but that the same had vested absolutely in the first takers; and, therefore, such appellants cannot assign as error that the-decree should not have been in favor of complainants, but in favor of said wife as conting-ent remainderman, whose right was negatived by the decree, and who did not appeal.
   McFarland, J.,

delivered tire opinion of tbe court.

The complainants, Mrs. Bell and Viola P. Horn, are. the only children of Jacob I. Horn, who died in "Wilson county, in 1860, leaving a will by which he provided that all -bis real and personal estate, except slaves, should be sold by* bis executor, and the proceeds kept for bis said two daughters until they arrive at age or marry, but provided bis daughters should die without issue, he gives his entire estate to his sister, Rebecca Payne, and hex daughters, R. P- and Mary K. ,

One of the testator’s daughters married W. J. Bell, and has one child. She and her husband and her sister, Yiola P., join in this bill, charging that the defendant, J. B. Horn, was duly appointed their guardian, and he received a large sum of money belonging to them, which he has still in his hands; that he has wholly neglected his duties as guardian, has converted the money to his own use, and wholly failed to make settlements as required by law. They pray his removal as guardian and a decree against him and his sureties. This relief was granted by the chancellor.

In the argument made in this court in behalf of Horn and bis sureties, the allegations of the bill as to his having received and used the funds in his own name, and having generally neglected many important duties as guardian, are not denied. But it is argued that it was error to decree the funds to the complainants, for the reason that under the will of their father, Mrs. Payne, now Mrs. Oldham, .and her daughters have either a remainder or contingent remainder interest in the fund, and that the money should either be secured in the hands of a trustee or paid to the ■complainants upon their bond to secure the remaindermen. If this were so it would be no reason why the decree for the removal of J. B. Horn as guardian, and for the payment of the money by him and his sureties should not be .affirmed. It would then be a question whether the money should bo paid to complaianants, or secured by bond. Mrs. Oldham, however, was a party to the cause for the purpose ci having her rights adjudged under the will, her two ■daughters having died without issue. She answered, claiming her rights, but the decree of the chancellor decided the question against her, and gave the fund to the complainants absolutely, and she has not appealed. The only prayer for appeal is as follows: “Game the defendants, E. P. Horn, James B. Horn and O. H. Oldham, and pray an appeal,” etc., “from so much of the decree rendered in this court as affects them.” C. H. Oldham is the husband of Rebecca Oldham, formerly Mrs. Payne, but he. and E. P. Horn are the sureties of J. B. Horn on his guardian bond, and it was the decree against them, and for the money, which affected them and from which they appealed. No appeal having been prayed in behalf of Mrs. Old-ham, the decree of the chancellor settling the question now insisted upon against her, remains in full force. There is therefore, no error against he appellants. The complainants have appealed from that part of the cbancetllor’s decree refusing to charge ten per cent, interest against the guardian, but the decree will not be disturbed. The decree will he affirmed, and the cause remanded if deemed necessary. The appellants will pay the costs of this court.  