Title Guaranty & Surety Co. v. Cowen

On Rehearing.

MILEY, J.

The only questions argued on. the petition for rehearing involve the construction of section 6582, R. L. 1910,. quoted in the former opinion, being the applicar ble statute of limitations. :

Counsel for plaintiffs in error argue that the cause of action accrued January 6, 1908,; when the principal on the bond resigned as guardian, and not on July 25, 1913, when' the final settlement of the guardian’s account was had1 and his liability to the wards determined. In Brewer v. Perryman, 62 Okla. 176 , 162 Pac. 791 , decided since the original - opinion in this ease was handed down, this court followed the decision of the Supreme"' Court of California in Cook v. Ceas, 143 Cal. 221 , 77 Pac. 65 , and held that a cause of action accrues against the sureties on the guardians’ bond when the guardian is relieved of1 office and his guardianship accounts, showing" an indebtedness to his ward, are -settled by formal order or judgment of the county, court, and the statute of limitations immed-' lately begins to rim thereon, if the person' then entitled to bring action is under rid legal disability to sue. That decision on this” point has been vigorously assailed, and we have been urged to overrule the same. While there are authorities to the contrary, and . the weight of authority may be against the rule announced in Cook v. Ceas, supra, yet the section- in question is a part of our Probate Code adopted from Dakota, which in' turn adopted the same from California, and the Supreme Court of North Dakota having in Gronna v. Goldammer, 26 N. D. 122, 143 , N. W. 394, Ann. Cas. 1916A, 165, and United States Fidelity & Guaranty Co. v. Citizens” State Bank of Langdon, 36 N. D. 16 , 161 N. W. 562 , also followed the rule announced by the California court, we do not feel dispose ed at this time to reconsider the same. Moreover it is unnecessary to do so in this cas.el

If it be assumed that the statute begins to run when the guardian is discharged or removed, and not from the date of the settlement of his final account, it would not operate as a bar here, because at the time of such discharge, the wards were by reason of their minority under legal disability to sue, and this action was commenced before the disability was removed. In this connection it is argued by counsel for plaintiffs in error that “the person entitled to bring such action,” within the meaning of the statute, was the successor to the principal on the bond as guardian, and not the infant wards. In the former opinion it was

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.-assumed that in this ease the wards were ¡the persons entitled to bring the action within the contemplation of the statute, and this court has since' held to the same effect in Brewer v. Perryman, supra. In Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128 , 128 Pac. 696 , followed in Lyons v. Fulsom, 54 Okla. 84 , 153 Pac. 868 , it was held that an action on the official bond of a former guardian was properly prosecuted in the name of the ward by his legal guardian. While executors and administrators hold the legal title of decedents to personal property for the benefit of creditors and distributors, the relation between guardian and ward is not one which gives the guardian the legal title to the ward’s estate. The Segal, as well as the beneficial, title to per.'•sonal, as well as real, property remains in Ghe ward, and the power of the guardian is :-a ¿naked trust not coupled with an interest. "Woerner’s .American Law of Guardianship, § 58, p. 172; 21 Cyc. 77; Thompson v. Thompson, 178 Iowa, 1289 , 160 N. W. 922 ; In re Stude’s Estate, 179 Iowa, 785 , 162 N. W. 10 ; Stewart v. Sims, 112 Tenn. 296 , 79 S. W. 385 ; Fassitt v. Seip, 249 Pa. 576 , 95 Atl. 273 ; Seillert v. McAnally. 223 Mo. 505 , 122 S. W. 1064 , 135 Am. St. Rep. 522 .

While it was the duty of the succeeding guardian to protect the interests of his wards by action on the bonds, and he would himself have become liable for any loss sustained by reason of his neglect so to do, yet the liability of the sureties on the bond of the former guardian was to the infants, and the right of action thereon was in them, and an action by the succeeding guardian thereon could only be maintained by him in their names. Judson v. Walker et al., 155 Mo. 166 , 55 S. W. 1083 . It is quite clear that, the right of action being in the wards, and they being by reason of infancy under; disability to sue, the action by the express terms of the statute was not barred.

We therefore adhere to the conclusion reached on the former hearing and the judgment is affirmed.

All the Justices concur.