HUDSON HUDSON others'll. ,BISIIOP.
{Oircuit Oourt; No D. Iowa, E. D. May, 1887" 1. GUARDIAN AND WARD-SUIT ON BOND-LEAVE OF COURT.
Rev. St. Wis. c. 170, §3968, provides that "in case of any breach" of a guardian's bond. the bond "may be prosecuted in the name of the ward for the use and benefit of such ward, or any person interested in the estate, when61Jer the county court 8hall direct." Held, the bond running to the ward by name, and it being the duty of the guardian, by its terms. to settle with the ward personally, the ward, after coming of age, could maintain suit in his .own name on the .bond, against the sureties, without first ,obtaining authority to do SQ from the county court. . The death of the guardian before the ward comes of age operates to "dischar§e" him, within the meaning of Rev. St. Wis. c. 170,§ 3968, providing t4at .'no, action shall be maintained against the sureties on any bOnd given by a guardian. unless it be commenced within four years from the time when the guardian shall have been discharged;" and the special limitation in that section in favor of the sureties begins to run from the date of the death. '
2.
S,UlE-SUIT. ON BOND-LlllITATION OF ACTIONS.
'8.
SAME.,
. The guardian was appointed in and estate closed m 1883. An accountmg was had In 1874, whlCh dlscldsed a balance In favor of the iward. This balance was proved against the estatll. and allowed by the probate court in 1876, but it was never pl\id in full. Held, that a suit against surety on the bond, commenced in 1886, to recover the balance, was barred by the four-yearslinlitation of Rev. St. Wis. c. 170, § 8008; the guardian "having been discharged, " at the latest, by the proof and allowance of the claim against his estate in 1876.
4.
SAME.
Rev. St. Wis. c. 170, § 8968, provides that "no action 'shall be maintained against tbesureties on any bond given by a guardian unless it be commenced within four years from the time when the guardianshaU have been discharged.". Held, that the bond being statutory, and the limitation a special one for the benefit of the sureties as contradistinguished from the guardian, the limitation entered into and formed a part of the sureties' contract. Under Code Iowa. § 2534, providing that, "whenever any cause of action has been fully barred by the laws of any country where the defendant has previously resided. such bar shall be the same defense here as though it had arisen under the provisions of this chapter," the fact that the surety on a guardian's bond in Wisconsin removed from that state into Iowa does not prevent him from setting up the Wisconsin statute of limitations as a defense to a suit in Iowa on the bond, where.at the time he left Wisconsin the bar of 'that statute had already fallen. .
Ii. LIMITATION OF ACTIONS-CONFLICT OF LAWS-ACTION ON GUARDIAN'S BOND.
At Law. Action on guardian's bond. On demurrer to petition. Lewis &:-. Pfund and Henderson, Hurd & Daniels, for plaintiffs. Starr &:- Harrison, for defendants. SHIRAS, J. In January, 1866, one Robert Limon Was duly appointed by the county court of Dane county, Wisconsin, the guardian of plaintiff$, who were then minors, and executed a bond inthe sum of$8,000, withWiIliatil'Powell and E. D. Bishop as s1,lr.eties,conditioned for the faithful perforniance of his duties asgnardian; the: same being given pursuant lothe provisions of chapter 170, Rev. St.Wis., section 3968 ofwhich is as follows:
520"
FE,DERAL REPORTER.
"Every bond given by a guardian shall be filed and recorded in the office of the county court requirhlg the same, and in case of any breach of the condition thereof, may be prosecuted in the name of the ward for the use and benefit of such ward, or any person iI,lterested in the estate, whenever the county court shall direct; but no action shall be maintained against the sureties on any bond given by a guardian unless it be commenced within four years from guardianshall have been dis'charged. But if. at the time the time of such disGharge, the person entitled to oring such action shall be under any legaldisalllHity, to sue, the action may be commenced at any time within foul' years after' such disability shall be removed. " On day of April, 1874, an accounting was had in the county court of Dane county, Wisconsin, with the guardian, and it was found and adjudged that he had in his hands belonging to his wards the sum of$4,748,55. In 1875 said Limon, guardian, died, and administration was l1ad on his estate, the same being closed in the year 1883. The were insufficient to pay the debts in full, and consequentlytheamount coming to plaintiffs was not wholly paid; theclaim therefor having been duly filed in, and allowed by, the probate court in Wisconsin ,having charge of said estate. To recover the balance thus unpaid thisaetion is brought by ilie wards, they being nowof full age, against the surety;'Bishop.who is now a resident of Iowa; the petition having filed6n the ninth day of July, 1886. By demurrer to the petition two questions are presented: (1) Can the a'Ction be maintained without averring and showing that the county court of Dane county, Wisconsin, authorized and directed the bringing of the suit? (2) Is the actionbal'red by lapse of time? Upon the first proposition it is contended by defendant that, under the provisioQ$ofsection 3968, no suit can be maintained upon a guardian's bond. ,unless the same is directed to be brought by the county court in which the bond is filed. Counsel have not cited any decision by the supreme court of Wisconsin construing this section in this particular. While the 'true meaning of provisions is not clear, and the mere language is open to the construction claimed for it by counsel for defendant, yet sl1ch should not be placed upon it unless it is clear that such is the legislative intent, for thereby a restriction would be created upon the rights of the wards for which no sufficient reason is perceived. The clause of the section is permissive,and not restrictive, in its purport, and confers authority upon the court to direct suit to be brought in the name of the ward, for the benefit of the ward, or of any other person interest.ed·. Without such !luthority it would be questionable whether a third partycould sue upon the bond, or whether the ward could maintain suit during the continuance of the p;uardianship. To obviate all question, under such circumstances, authority to direct suit to be brought is conferred upon the court; but is there any reason why it should be held that aft;er the wards come of age they may not maintain suit thereon wiiliout authority from the court? Under the terms of the bond, it is made the.d\lty of the guard'ian to settle his accounts with the wards, if they shall he of full age, and to pay to the parties entitled thereto the . sums found due them. This is an express contract with the wards.
HUDSON V. BISHOP.
521
The bond runs to the wards by' name; and surely, if it is the duty of the guardian to settle with the wards personally when they become of age, they must have the right to .enforce such settlement by suit on the bond,' and such right is not dependent on the order of the court. The second question presented is whether it appears that the action is barred by the lapse of time. The express provision of section 3968 is that"No action shall be maintained against the sureties on any bond given by a guardian unless it be commenced within fOUf years from the time the guardian shall be discharged/' . This is a special limitation for the benefit of the sureties, and dOes not affect the right to recover from the guardian. The limitation begins to run "from the time the guardian shall be discharged." On part of plaintiffs, it is argued that the guardian is not discharged until there has been a final accounting and settlement, and an order or judgment entered adjudging the amount due ftom the guardian,. and ordering its payment. This construction would make the words "shall be discharged" equivalent to the term "final settlement of,accounts." Practically, this may be, in, the majority of instances, the time when the guardian is discharged.Fot instance, when the ward becomes of age, it is the duty of the guardian to settle his accoupts, and turn ove:fall property in his hands belonging to the ward. THe fact that the ward comes of age does not, ipso facto, change the relation in which the guardian holds the property from that of a statutory trustee to' that of a debtor. Holding the. property of the ward, he is bound to exercise proper care thereof, and this duty and obligation will continue until he has duly ae. counted for and delivered up possession of the property. But is this true in case at the death of the guardian before the ward comes of age? In such case the personal care and management of the property by the guardian is at an end. Are the sureties on the guardian's bond to be held liable for the acts or negligence of others than their principal? Is not the guardian discharged when by any reason he is relieved from any further control over the property of the ward? Such a discharge does not relieve from liability for all past acts; but is he not discharged from furtper liability by reason of the fact that his power to control is at an end? The death of the guardian ends, of course, all personal control over the property. His estate becomes liable for all sums found due to. the wards. If it is ascertained that at the date of the death of the guardian a certain sum was in the hands of the guardian belonging to the wards, and the same is not paid, the sureties on the bond may be liable therefor; but, under the statute, suit thereon must be brought within fouf years from the discharge of the guardian, and it seems to me that death is such a discharge. If this be the correct construction of the it follows that thef()UT years wOtild begin to run at the date of Limon's death, in 1875; but, if this is not the true reading of the statute, then, when in fact did it begin to run under the theory of plaintiffs? The petition avers that in 1874 a settlement of accounts was had in the county court of Dane county, aHd
522 ,it adj,udged
FEDERAL REPORTED.
$4,748,:,55 'Yas allowed by the proper court as a claim against thE) estate; and thj!tt various payments were made thereon, extending lr<:>IJ!. 6, 1876, down to the year 1883. Was not the account of the guardian settled, and ordered to be paid when it was !lnd ,RY the court ajust claim against the estate? lU argument that the· guardian cannot be deemed to have been discharged until the final winding up of his estate in ,1883 j that it cou1d;J;l,ot be known how much would be left due·and unpaid, and therefore ,tpe limiUition did not begin to run until the final winding 'l':bfl due the guardian to the 'Wards was theclainjwas. allowed. . If not paid at once, the condition','#the bond and file wards were, to await. settlement of the estate before resorting' to the bond. The ,bond is payment of any deficiency left after reto the propertyolthe prmcipal, whether he be,livit;lg or dead, but for discharge of the duties of the g}lardian, including prompt !!-nq payzp.Emt of all amounts in hIS hands, when the guardbe terminated. If Limon had been removed, or had resignel;l theguardianslj:tip, 1875, and,failing to pay ovef or account for suit hadbeen brought against eqf'?fc.e the collection thereof, Can it be true that the limitat{ou, of ;four for the protection of the sureties would woul,d'na,t, the finaI termination qfthe action against .Liro.on1alf\d all mell,ns to enforce the collection of the then why. in case of his death,is the statute tORe postponed until all me.ans have been ex{)Ollecrt: from his estate? Under any view that ,can be taken of period hegll,n to run. not later than the date of the ,lillowatlce oftheu:ilaim againat t1:1e estate of Robert Limon, and it had long before this suit was brought.' how.ever" (}ontains another exception, and that is that, if the Parti.es interested are. any: legal disability to sue, the action nmy ,!),e(}'Pl!111lel?-ced at allY tim.e",ith,in four years after the removal of s1.lCh;diaal;iility.. , It does not appear from the averrpentsof the petition, orupou' wqen the wards came of age, and it may therefo;re', be true that" under these60nd exception, the right, of action stillexi$ts. '" " ' '" '. " . ",On peh,alf of plainWfs · it is olaiInEld that the fact that the present defenda4t :removed from 1¥isconsin, and is now a resident of Iowa, pr!'lvents him from availing himself of the limitation contained in the Wishad expired before the defendant ..1 ftthe state of WlS(lonsin"thetl, und,er section 2534, Code Iowa, e W'(m1d' be barred in this'.state. , " , TIle qf the tion do not when the defendant ceased to bea,resident,ofWisconsin, andhl;lnce, ripon demurrer, it cannot pc · :. ( : . . t,,; ;, . j · ' . : . ',,"'. ' . · . , · ' .. ' ,
$4,748 rQ5 ,with whICh lle was, to stand charged j that the guardian died in 187 q; that administratiouon bis estate was had j that the above claim for
wasin the hands of the guardian the sum, of
.HuDsON V.' BISHOP.
523
held that the action is barred' by lapse of time, unless it bll true that the four-years limitation is part (lithe contract of suretyship.' It iswyll set-: tled that statutes of limitatioJ;1 may be enacted affecting existing if a reasonabletime is allowed within ",hich actions may be brought after the passage of the act. Terry v. Anderson, 95 U. S. 628. It is equally well settled that "the laws which exist at the time and place of the making of a contract, and where it is to be performed, enter into and form part of it. This embraces alike those which affect its validity, construction, discharge. and enforcement." Walke-r v.Whitehea,d, 16 Wall. 314. When the legislature of Wisconsin provided for the giving of a bond by a guardian, it had a right to enact and declare the duties and obligations imposed thereunder upon the sureties signing the same. ,The extent of the liability thereby imposed is to be determined by the statute of Wisconsin, no matter in what forum suit may be brought thereon. When the statute in express terms declares that, as against the sureties, no action can be maintained unless brought within four years after the discharge of the guardian, this defines the extent of the liability of the surety. It. aannot be treated as a, mere matter affecting the remedy upon the contract of suretyship, but it is part of the contract itself. In this regard sureties standin a different position than the principal. The guardian receiving the property of his wards would be liable to account therefor without any statutory declaration to that effect. He has no vested interefl+ in any particular period of limitation, and cannot complain if the statute should be entirely abrogated. When, however, a person is asked to assume the position of a surety for another, by signing a stat. utory bond" and the statute expressly limits his liability by providing that he cannot be'sued thereon after a fixed period, it w:ill not do to hold that the limitation is a mere matter of form, affecting the mode of procedure, and that it may be wholly taken away by legislative enactment. It is a substantial right protecting the surety by limiting the extentof the liability assumed, and enters into the obligation of the bond given under the statute. As such it is one of the conditions of the contract, and therefore an action cannot be maintained against the surety uhless brought within the period thus fixed. In many policies of insurance it is' provided that no action can be ina.intained thereon unless brought within a year, or other fixed time, from the date of loss, and such provision is sustained. Riddlesbarger'v. Insurance Co., 7 Wall. 386; Carter v. Insurance Co ·· 12 Iowa, 287. If valid at place of contract, such provision is valid everywhere. The statute of Wisconsin not give to the wards an unlimited right ofaction against the sureties on the It creates a limited right of a.ction, an,d. when suit is brought in Iowa upon the bond given in ance of such a statute, regard must be had to the provisions of the statute in determining whether a ril;htofaction exists. In favor of a surety who has assumed only the liability prOVided by the statute, its provisions'IDust be deemed to be part of the contract, in such sense that if,by its terms r all right of action thereon has ceased to exist in the state under whose laws it was contracted; no action can be maintained thereon else-
524
FEDERAL REPORTER.
where.: I If thllre are circumstances, legal or equitable, which save to the plaintiffs,a right of action, notwithstanding the lapse of time, the same be pleaded. I 1t does not appear that the failure to bring suit against the surety within. four years after the discharge of the guardian was due to any Ie-gal disability to maintain an action on part of the wards, or to fraud, conceahn'imt, or the like on part of the surety. It does appear that this action against the surety was not brought until 11 years after the death of the guardian, and 10 years afLer· the allowance of the claim of the wards against his estate; and this lapse of time is a deflmse, under the provisionS of the Wisconsin statute limiting the right of action against the surety to the period of four years from the discharge of the guardian. Demurrer is therefore sustained.
MIDDLETON v. BANKERS' & MERCHANTS' TEL. C6. ·«(Jircuit Oourt; E.D. Pennsylvania. May 6, 1887.)
1.
ATTOME:Y:.lND CLIENT - COMPENSATION OF ATTORNEY MASTERS AND COUNSEL:
COMPENSATION OF
CounsiH are entitled for services· to what those services could have been obtained for under a contract made in advance. OF MASTER.
The compensation of masters. whose functions are judicial, may be measured by the standard of judicial salaries.
In Equity. Henry Sarnpsm and Gummey Fletcher, for complainants. R. J. IngerBda and J. H. Barnes, for respondents. BUTLER, J. But two exceptions remain; all others have been withdrawn. These relate to the fees of counsel and compensation of the court realizes the danger of overestimating the value of master. such service!! in cases like this, and feAl.s no hesitation about interfering' where the circumstances warrant it. As respects the fees of counsel, it must be understood that .the court has no personal knowledge, either of the extent of' services, or their value. The master reports that the calls upon counsel were very frequellt, weekly, and sometimes much oftener, throughout the whole period of their employment, and that the sum allowed (but a small part of the amount claimed) is reasonable and just. In answer to this I am not referred to anything but the record of the proceedings, which shows,. virtually, nothing pertinent to the subject. have been very great without any indication of it apThe seJ:vices pearing there. No serious qUtlstions were discussed before the court. The propeJ:ty Rnd interests involved, however, were very large, and the proceeding was one that required professional knowledge, skill, and care.