Alice Parish et al. v. H. F. Alston, Ex'r, Etc., 65 Tex. 194

Watts, J. Comm. App. By the terms of the statute then in force, the marriage of appellant, Alice Parish, terminated the guardianship. Pas. Dig., art. 6928. It also rendered her, in legal contemplation, of full age, although a minor. Thompson v. Craig, 24 Tex., 582. Prom the allegations in the petition, it appears that the acts of waste, conversion, etc., complained of, occurred prior to the marriage. In other words, the cause of action accrued to her during the guardianship.

A suit for the waste, conversion, etc., might have been maintained against Phillip Alston, the guardian, at any time after these things occurred. But, for two reasons, no limitation would run against Mrs. Parish, prior to her marriage, for failure to bring the suit. She was then laboring under the disability of nonage, which would protect her against the operation of the statute of limitation. Besides, the relation of trustee and cestui que trust of an express trust existed between the guardian and ward, which had the same effect.

As has been seen, the marriage terminated the disability of infancy, but appellants claim that the trust relation continued notwithstanding the marriage. That position can hardly be maintained, for if the marriage terminated the guardianship, and of that there can be no-doubt, it certainly terminated the trust relation theretofore existing between the parties. Mr.

Wood, in his work on Limitation of Actions, sec. 204, says: ‘‘The better rule seems to be that the statute begins to run from the termination of the guardianship, except in cases where the cause of action arises from matters occurring after the guardianship has ceased.” In Alston v. Alston, 34 Ala., 29, it is said: “ The statute of limitations could not commence running against the complainant until the termination of the guardianship.” See also Taylor v. Killgore, 33 Ala., 214 5 Eiland v. Chandler, 8 Ala., 781.

Upon the termination of guardianship the ward would be entitled to the property, and the guardian, whose office had ceased, would have no right to retain it as against the ward. The relation of trustee and cestui que trust of an express trust no longer existed between them. The existence of that relation depended entirely upon the existence of the guardianship, for it is not alleged that this relation was either created or continued by contract. So that when the guardianship terminated, if the guardian then failed or refused to deliver the property, money and credits to Mrs.

Parish, a cause of action would then accrue. R. S., art. 3222. As it is alleged that the acts of waste, conversion, etc., occurred, during the existence of the guardianship, a cause of action accrued, but no limitation ran, during the existence of the guardianship, because Mrs. Parish was then a minor. When she married, however, that disability ceased.

The act which terminated that imposed another disability, viz., coverture, to which, if asserted as a protection against the statute, it might be replied that the cause of action accrued while she was a minor, and that one disability cannot be connected with another for the purpose of extending the period of limitation. R. S., art. 3225. There are no such allegations of the concealment of the fraud charged against Phillip Alston as would arrest the running of the statute. It does not appear but that the facts could have been ascertained by appellants by the use of reasonable diligence.

On the contrary, the allegations are such as to indicate that, by the exercise of slight care, all the facts might have been known to them at the termination of the guardianship. If, as charged, the minute book of the probate court, which was saved from the fire, disclosed the facts alleged in the petition, then no reason is perceived why they should not be chargeable with a knowledge of all the facts disclosed by the record. Upon an examination of the entire record, we are of the opinion that there is no error in the judgment, and that it ought to be affirmed. Affirmed. [Opinion adopted December 18, 1885.]