Granville Allen et al. v. J. B. Stovall et al., 94 Tex. 618

GAINES, Chief Justice. This suit was brought by E. E. Allen, joined by her husband, Granville Allen, Charles H. Bast, D. S. Bast, and T. J. Bast, upon the bond of Abe Bast, given as their guardian. One of the sureties on the bond having died, the principal, the surviving surety, and the heirs of the deceased surety were made parties defendant. The conclusions of fact found by the trial judge were approved by the Court of Civil Appeals, and, with one exception to be hereafter noted, present a full statement of the facts of the case. So far as necessary to the purposes of this opinion, we here set them out. “1.

I find that Orlena Bast died prior to the 5th day of January, 1879, leaving as her sole surviving heirs her children, E. E. Bast, Charles H. Bast, David S. Bast, and Thomas J. Bast, and that on 10th March, 1900, they were of following ages, to wit: E. E. Bast, who married Granville Allen on the 8th of May, 1892, was 26 years of age; D. S. Bast was 23 years of age, T. J. Bast 21 years of age, and Chas. H. Bast 28 years of age. “2.

I find that Abe Bast was the father of the children above mentioned, and that he was, by proper orders, appointed guardian of their persons and estates on the 25th day of January, 1879; that he duly qualified as such guardian and on the 26th of March, 1879, he entered into bond in the form stated in plaintiffs’ petition, with J. C. Reed and D. F.

Cameron as sureties, which said bond was delivered to and was approved by the probate judge of Dallas County, Texas, and was made payable to the- county judge of Dallas County, Texas, was in the sum of $3400, and was conditioned that said guardian should faithfully perform all the duties required of him by law as guardian of the estates of his said wards. [Though the court does not so find, the undisputed fact is that the hond was joint and not joint and several.] “3.

That the only estate that said wards had was their interest in certain lands inherited by them from their said mother, and that the title to said lands was then involved in suit pending in the District Court of Dallas County, Texas; said suit was numbered 3417, and styled Cameron v. Thurmond, which said suit was also a suit for partition and had been filed in 1876, had been once appealed to the Supreme Court, and had been reversed and remanded, and that judgment had been finally rendered on the 17th day of February, 1890, divesting title out of said minor wards of Abe Bast, and vesting title in W. H.

Gaston on his paying to said Abe Bast, guardian, the sum of $5000. “4. I find' that said $5000 was. paid in cash to Abe Bast prior to the rendition of judgment, as aforesaid, in cause No. 3417; and that the same was paid and said judgment so rendered under a compromise agreement between all the parties at interest in said cause, which said compromise agreement was duly authorized by order of probate court of Dallas County, Texas, made and entered on the minutes of said probate court on the 14th day of February, 1890, in the Bast guardianship. “5.

I find that Abe Bast, guardian, never made any report to the probate court of Dallas County, Texas, where said guardianship was pending, of the amount received, as above stated,—though he was ordered several times to make report,—and that he has never made any settlement with his said wards in any way, and has not accounted either to them or to the probate court for the money so received. “6. I find that said guardianship was closed, without any accounting, on the 16th of August, 1898. “7.

I find that demand was made on Abe Bast for a settlement about the 5th of October, 1899, the date this' suit was filed, and that he made no reply to the demand. ■ “8. I find that J. C. Reed, one of the sureties on said guardian’s bond, died on the 7th day of January, 1885; that the administration was opened in Dallas County, Texas, on his estate on the 28th day of March, 1885, and that on July 3, 1890, said administration was closed by the proper order. That J. C. Reed’s surviving widow, who was his second wife, married R. T. Merriman prior to this suit. “9.

I find that the property described in plaintiffs’ petition (except the lot in the town of Grand Prairie) was acquired by J. C.

Reed prior to 1860 and was community property between himself and his first wife, who died prior to 1880; the said property descended to his heirs and only children, to wit, Bessie Stovall and Emma Harston, and upon the close of the administration upon his estate, was turned over to them by his administrator, and that they, with their husbands, are , now in possession of said land, holding the same as such heirs.” Upon the facts found by it, the trial court gave judgment against defendants Bast and Cameron for the full amount of the bond, but also ruled that as against the heirs of Reed, the deceased surety, the plaintiffs should take nothing.

From the judgment, the plaintiffs appealed, and the Court of Civil Appeals reversed the judgment of the trial court and held that Mrs. Allen and Chas. H. Bast were barred by the statute of- limitations, but that the other two plaintiffs were entitled to recover not only as against the principal and living surety, but also against the heirs of Reed. That court rendered judgment accordingly. The plaintiffs, Mrs. Allen and Chas. H. Bast, on one side, and the defendants, the heirs of Reed, on the other, have applied to this court for °a A?rit of error and both applications have been granted.

The heirs of Reed contest a recovery upon four grounds: 1. In the first place, it is contended that since the bond, by its terms, was joint and not several, the liability upon it ceased with the death of Reed. This is the rule of the common law. But in 1840 the Congress of the Republic enacted a statute which contained the following section: “See. 5.

Be it further enacted, that the representative of one jointly bound with another, for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the lifetime of the latter, may be charged by virtue of such obligation in the same manner as such representative might have been charged, if the obligors had been bound severally as well as jointly.” Laws 1839-40, p. 73. This continued in force until the Revised Statutes of 1879 went into effect, September 1, 1879, which was after the date of the execution of the guardian’s bond. Mays v.

Cockrum, 57 Texas, 352; Bergstroem v. State, 58 Texas, 92; Glasscock v. Hamilton, 62 Texas, 143; Boyd v. Bell, 69 Texas, 735. (We note just here that the supposed errors in the words of the statute pointed out in Bergstroem v. State, supra, are typographical, as is shown by the “errata” at the end of the original printed volume.) That the law entered into the bond and gave it the effect of a joint and several bond, and.that a subsequent repeal of the law did not change its effect and impair its obligation, we think clear. But it is insisted that the word “representative” in the

section quoted does not include the heirs of the deceased. The signification of the word is broad enough to embrace both executors or administrators—the personal representatives as known to the common law-—and also the heir, who, under that law, occupied the place of the ancestor as to the real estate and represented him as to such property. Doubtless the word, when found in a statute, may be construed as having a more restricted sense, provided the context and the purpose of the law so require.

But when neither the context nor the purpose indicates that its meaning was to be limited, we think it should be interpreted in its literal and unrestricted sense. The construction of the word came up for consideration in one of the supreme courts of New York in the case of Lee v. Dill, 39 Barbour, 516. As Ave gather from the opinion in that case, under the code of Hew York, parties to actions were, as a rule, permitted to testify in their own behalf, but not against parties who were “representatives of a deceased person” as to any transactions between the witness and the deceased.

In that case, the heir, a feme sole, was a party, and her adversary was upon the trial allowed to give testimony as to such transactions. The question was, whether the heir was a representative of the deceased within the meaning of the statute, and the court held that she was. In disposing of the question, '¡the-court say: “A representative is one that stands in the place of another as heir or in the right of succeeding to an estate of inheritance; one who takes by representation. Webst. Die. One who occupies another’s place and succeeds to his rights and liabilities.

Executors and administrators represent, in all matters in which the" personal estate is concerned, the person of the testator or intestate,_ as the heir does that of his ancestor. Burrill’s Law Die.; 2 Steph. Com., 428. Representatives of a deceased person are real or personal; the former being the heirs at law, and the latter, ordinarily, the executors or administrators. The term representative includes both classes.

When the personal representatives alone are intended in a statute, they are so named, and there is no intimation of an intent to limit the protection and benefit of this exception to the personal representatives. The Teal representatives’ are as much within the reason of the rule as the personal representatives, and there is as much reason for protecting the one class as the other.” The case was affirmed by the Court of Appeals of New York but apparently without a written opinion. See 2 Hand (41 N. Y.), 619. Practically, the same construction was applied in this court in the case of Grayson v.

Winnie, 13 Texas, 288. In the latter case Chief Justice Hemphill says: “The

section above cited employs the phrase legal representative of the deceased. This is a general term, susceptible of different significations, and perhaps it would have been more judicious to have followed the language of the Act of 1838, viz., executor, administrator, guardian, creditor, or heir. Acts of 1838. There is no room for doubt, under such language, that in proper cases the heir might appear himself and continue a suit begun by the ancestor or by his administrator.

We are not to infer, however, that by the change of phraseology the Legislature intended to deprive heirs of the power to represent the deceased, they being in fact his real and permanent' representatives, the others being appointed and representing him for merely temporary purposes and trusts. I apprehend that on examination it will be found that in repeated instances in our statutes the terms legal representatives and heirs are of synonymous signification and import.

This is not peculiar to our laws, for it will be found that in some of the other States the terms legal representatives have not been considered identical with executors and administrators.” The purpose of the act we have under consideration was to abolish the common law rule as to joint bonds, and we see no reason why an action should have been allowed upon such bond against the executor or administrator of a deceased obligor, and should not be allowed to charge the estate in the hands of the heirs with the debt where the administration had been closed. It is worthy of note that in the twenty-eighth

section of the act “regulating the duties of probate courts and the settlement of successions,” which was passed at the same session at which the statute in question became a law, “the personal representative or representatives of any testator or intestate” are mentioned,—evidently meaning executors or administrators, as the case might be. Laws 1839-40, p. 118.

This shows that the Congress in session when these acts were passed we* not unmindful of the distinction between the personal and the real representatives of an estate, and that when they meant to make a law applicable to executors and administrators and not to heirs, they used the terms “personal representatives.” There is nothing in the context of the statute which indicates that the word “representatives” was not intended to include heirs; while it is necessary that they should be included in order to accomplish in full the purpose of its enactment.

"Upon this point, we conclude that the heirs of Reed were liable for a breach of the bond, whether occurring before or after his death. 2. In the second place, it is contended that the compromise of the suit in the District Court of Dallas County, under which the guardian secured the money with which the defendants are sought to be charged, was not authorized by law, and that therefore the guardian is not responsible to his wards therefor. It is unnecessary to discuss the facts pertaining to that matter. The statute settles the question.

Section 69 of the Act of 1876 in relation to guardians provides: “The guardian or his heirs, executors, administrators, or assigns shall not dispute the right of the ward to any property that shall have come to his possession as guardian, except such property as shall have been recovered from the guardian, or there be a personal action pending on account of it.” Laws 1876, p. 180. This was the law when the bond in this case was given and has ever since been the law. Rev. Stats. 1875, art. 2551; Rev. Stats. 1895, art. 2632. We think the statute in the main, is but declaratory of the common law. 3.

In the third place, the statute of limitations is urged in bar of a recovery as to two of the plaintiffs. Chas. H. Bast attained his majority and Mrs. Allen was married more than four years before the suit was brought and before a demand for settlement was made. If the statute began to run from the time the relation of guardian and ward ceased to exist, then the action as to these parties is barred. But if the statute did not run until the guardian was discharged, then since the guardian has never been discharged, the suit was brought in time.

The statute applicable to the case reads as follows: “All suits on the bond of any executor, administrator, or guardian shall be commenced and prosecuted within four years next after the death, resignation, removal, or discharge of such executor, administrator, or guardian, and not thereafter.” Rev. Stats., art.

Article 2764 provides that “when the ward dies, or if a minor arrives at the age of twenty-one years, or if a female marries, * * * the guardianship shall be immediately settled and the guardian discharged, as provided in the following articles of” the chapter. The same

article is found in the Revised Statutes of 1879,

article 2682. Marlow v. Lacy, 68 Texas, 154, was a suit by heirs and the assignees of heirs of a deceased ward upon the bond of her guardian, and the defense of the statute of limitations was set up. If the statute ran from the time the relationship of guardian and ward ceased—in that case, from the death of the ward—the bar of the statute was complete; whereas, on the ocher hand, if the statute did not commence to run until the guardian was discharged, the defense was not good.

The question being thus sharply presented, this court held in an elaborate and exhaustive opinion by Judge Stay ton, that since the guardian had never been discharged, the statute of limitations was not a bar to recovery. If the death of the ward did not put the statute of limitations in operation in that case, neither the majority of C. H. Bast nor the marriage of Mrs. Allen set it in motion in this case. We think the decision in Marlow v. Lacy is correct, and that it is decisive of the question now under consideration. We do not regard the casa of Timmins v. Bonner, 58 Texas, 555, and of Parish v.

Alston, 65 Texas, 198, relied on by counsel for the heirs of Reed, as being in conflict with Marlow v. Lacy. The sole question decided in Timmins v. Bonner was that the 45th

section of the Act of 1876, in relation to guardians, which attempted to confer jurisdiction upon the county court over a suit upon a guardian’s bond, was unconstitutional. It is true that in Parish v. Alston it was held, that after the lapse of four years from the marriage of a female ward, a suit upon the guardian’s bond was barred.

In that case, the ward married in April, 1872, and the four years had elapsed long before the passage of the present law and even before the passage of the guardian act of 1876, which contained a provision as to suits on guardian’s bonds similar to that now found in the Revised Statutes. No statute was construed in that case.

The ruling merely was that upon the general principles of the law, the statute of limitations to a suit on a guardian’s bond began to run upon the termination of the relation, by the marriage of the female ward, and since four years had elapsed since the ward had married, the action was barred by the general limitation of four years upon written contracts. The decision of the Court of Civil Appeals in Read v. Henderson, 57 Southwestern Reporter, 78 is in conflict with that of this court in Marlow v. Lacy, supra, and in that case a writ of error was denied by this court.

But the ruling on the question of limitation was in favor of the party who applied for the writ of error and hence that question was not presented to this court. The fact that the party who was held to be barred did not apply to us for a writ of error was doubtless not known to the Court of Civil Appeals when they decided the present case, and the resulting misconception has probably led to the ruling in that court which we deem erroneous. We think the action was not barred as to Mrs. Allen and 0. H. Bast. 4.

The fourth ground of error relied upon is that the Court of Civil Appeals erred in holding in effect that the guardian was not entitled to credit for expenditures in the maintenance of his wards. That the Court of Civil Appeals were correct in their ruling is shown by the decisions of this court. Blackwood v. Blackwood, 92 Texas, 478; Jones v. Parker, 67 Texas, 82; Smythe v. Lumpkin, 62 Texas, 242. The judgment of the Court of Civil Appeals and that of the District Court are accordingly reversed and here rendered for all the plaintiffs against defendants Abc Bast, D. F.

Cameron, and the heirs of Reed for the penalty of the bond, with interest at 6 per cent per annum from October 5, 1899, the date of the demand. Reversed and rendered. ON MOTION TO CORRECT OPINION. GAINES, Chief Justice. As we think our opinion in this case sufficiently indicates the judgment that was to he rendered and that the judgment is in accordance with the opinion, the motion to correct the opinion is overruled.