¶1The only debatable question in this case, as it seems to me, is the one passed upon by the court during the progress of the trial, and that is whether the defendants Payne and Hodgkins, as sureties upon the bond of the defendant Whitney, as guardian, may allege and establish as against the plaintiff, the infant, any fraud or misrepresentation on the part of the defendant Whitney at or prior to the time of the execution of the undertaking so as to invalidate such undertaking. I was then of the impression that they could not, and am still of the same view.
¶2I think the surrogate’s decree, under date of March 3, 1906, was to all intents and purposes a final settlement of the guardian’s account. The defendants Payne and Hodgkins, as sureties upon the guardian’s bond, were parties to that proceeding and are bound by the decree entered therein until the same has been modified or reversed by competent authority.
¶3I am also of the opinion that the return unsatisfied of an execution issued upon a surrogate’s decree in such a proceeding is all that is necessary to justify an action against the guardian’s sureties and sufficient proof that the plaintiff has exhausted his remedies against the principal in the undertaking.
¶4The deed of conveyance from the defendant Whitney to the plaintiff, dated July 24, 1905, is not to my mind presumptive evidence of a settlement and adjustment of all matters between them. It may not by inference be extended to matters other than those therein specifically mentioned or referred to. The subject-matters of that conveyance being set forth therein, it will be presumed that it has application to only such matters as are specified.
¶5It follows that judgment must be entered for the plaintiff ior the relief demanded in the complaint against defendants, with costs.
¶6Let findings of fact,and conclusions of law be prepared and submitted in accordance herewith.
¶7Judgment accordingly.