David L. Brooks vs William Morrow, Court of Appeals

On 19 Apr 1867, in an equity suit in Bullitt Circuit Court brought by William and Nathan Morrow against those who had stood security for William Shain as guardian for them as youths, the court ruled as follows. Following that ruling, D. L. Brooks appealed the verdict to the Court of Appeals, and their decision is given further below.

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Bullitt Circuit Court Order Book U, pages 461-462

W. & N. Morrow, plaintiff against William Shain's Sureties, defendants, in equity.

This day this cause being submitted to court and now coming on to be heard upon the petition, amended petition, answers, exhibits and depositions, and the court being sufficiently advised is of opinion that as to the defendants, Woodford McDowell, A. C. Kinnison, H. B. North and W. B. M. Brooks the papers in blank, executed by them by them, intended as bonds for William Shain as guardian for the plaintiffs are nullities and by them said defendants incurred no liability, adn the petition against them is dismissed; and the court is further of opinion that the defendants D. L. Brooks and the estate of James Anderson in the hands of his administrators are alone responsible as sureties for said Shain. It is therefore adjudged that the plaintiffs recover of said D. L. Brooks and Susan Anderson, administratrix of said James Anderson the sum of $1217.71 with interest from the 10th day of April 1864 with a credit of $493.42 of date the 21st day of April 1865; and also recover of them the further sum of $47.35 and interest from the 1st January 1859; also the further sum of $115.35 with interest from the 15th March 1860; also the further sum of $102.80 with interest from the 1st January 1858; and also the further sum of $50 and interest from the 11th January 1858, amounting now to the sum of $1368.24 and interest from this day; and also their costs herein expended, and may have execution to be levied upon the estate of D. L. Brooks and upon the goods and chattels of James Anderson dec'd in the hands of his administratrix, the defendant Susan Anderson.

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In August, 1854, William Shain was appointed by the Bullitt County Court guardian for William and Nathan Morrow, and executed a covenant to the Commonwealth with Woodford McDowell as his surety.

In 1858, McDowell, the surety, apprehending Shain was insolvent, proceeded against him for counter security in said court, and, on the 15th of February the following order was made, on McDowell's said motion: "This day came the parties by their attorneys, and the defendant elected to give a new bond, and thereupon came into court and executed a new bond to the Commonwealth with David L. Brooks, James Anderson and Alonzo C. Kennison his sureties, conditioned according to law," and a complete bond was executed.

On the 16th of January, 1860, as the record shows, Kennison required Shain to execute a new bond, and as is stated in the order Shain, "Gave a bond with Henry P. North as his surety, who is accepted in the place of A. C. Kennison, security, and said Kennison is released as security on said bond from this date. Said Shain and North, security, executed a bond to the Commonwealth of Kentucky, conditioned according to law. D. L. Brooks and James H. Anderson the other securities and A. B. North are now the securities."

A bond, or paper in blank as to the name of the guardian, ward and surety, but signed by Shain and North is presented as the bond taken under that order. And in December, 1860, on motion of North against Shain for couunter-security, Shain was required to execute a bond to North, and a paper precisely such as he signed, is signed by Shain and W. B. M. Brooks.

On the 19th of April, 1867, the Morrows brought their action against Wesley Phelps, curator of the estate of Shain, he having died, and all the persons who signed bonds as his sureties for a settlement of his accounts, and for the amounts due them from their late guardian. The court below dismissed the petition as to McDowell, Kennison, North and W. B. M. Brooks, and rendered judgment against D. L. Brooks and James H. Anderson for the residue of the debt due the plaintiffs after deducting the amount paid by Phelps as curator of the estate of Shain, and D. L. Brooks appeals.

He insists that by the order of the county court purporting to release Kennison, that he and Anderson were also released, and it was therefore erroneous to render judgment against him and Anderson's representative.

It is made by statute the duty of the county court, when a guardian is appointed for a minor, to take from such guardian a covenant with good surety approved by the court to the Commonwealth faithfully to discharge the trust of guardian. Sec. 3, Art. 1, Chap. 43, 1 Vol. R. S., 574.

After the appointment is made the court may remove the guardian for failing to make settlement of his accounts as required by law, or as may be required by the court, or for failure to give additional security when required. Sec. 13 ib. And by the next section it is made the duty of the court annually to inquire into the solvency of the sureties for guardians; and if at any time it has cause to believe that the sureties of a guardian are insolvent, or in failing circumstances, it shall, after summoning the guardian, require him to give additional security. The 15th section provides upon the application of the surety of any guardian and after summoning the guardian, the court may if it believes him to be insolvent, or in doubtful circumstances, require him to give counter-security to his surety, and on his failing to do so, remove him, or order the estate of the ward to be paid over to a new guardian or curator. But if the guardian shall when required give his surety counter-security, it may be proper and the county court might be authorized to release the surety requiring countersecurity. But until that is done it is very clear the county court has no power to release any surety.

The counter-security contemplated and required is the execution of a bond or covenant by the guardian with one or more good sureties, approved by the court, who must undertake faithfully to discharge the trust of guardian, and to secure the surety making the application from loss and all the liabilities he may have incurred by reason of having been bound as the surety of the guardian. Less than that, the court has no legal power to do, and until that is done, the former security remains bound.

The paper signed by Shain and North was not such a covenant as is required by law, and wholly insufficient as a guardian's bond, or as an indemnity to Kennison; it is in fact, no bond or covenant; consequently the county court of Bullitt had no power to make the order releasing Kennison, and a fortiori appellant was not released. But the failure to render judgment against Kennison is not an error of which appellant can avail himself for a reversal: the wards might have been entitled to a judgment against him as a joint-obligor with their guardian; and they might sue the guardian alone, or with one and more of his sureties, and a judgment against such surety he could not reverse because the other sureties were not sued.

Judgment affirmed.

Bullock & Anderson, for appellant.
H. H. Field, for appellee.

Kentucky Opinions Containing the Unreported Decisions of the Court of Appeals. Compiled by Hon. J. Morgan Chinn, Clerk. Vol. II. From 1867 to 1869, Central Law Book Company, Lexington, Kentucky; pages 202-205, Copyright 1907

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