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81 Ind. 62

Corbaley v. State ex rel. Holmes

Indiana Supreme Court

Decided November 15, 1881

Indiana Supreme Court · decided 1881-11-15

<p>Decedents’ Estates. — Olaim.—Principal and Surely. — Prior to the statute of 1881 (E. S. 1881, section 2311), an ordinary suit' might be brought against a principal debtor, and the administrator of his surety; and if the principal was not served with process, the suit might go on against the administrator alone, unless objection was made by motion before pleading.</p> <p>Guardian and Ward. — Action on Pond. — Pleading.—Appraisement.—A complaint on a guardian’s real estate bond, to recover for failure to account for the proceeds of the real estate sold, need not show an appraisement of the real estate.</p> <p>Same. — Set-Off.—Answer of Surety. — In such an action, the guardian being the father of the wards, and answer of set-off by the surety, alleging that the wards were indebted to the guardian in a sum named, “ for board, clothing and maintenance,” is bad on demurrer.</p> <p>Same. — An answer in such case by the surety, that, the wards being of tender years and unable to earn support, tho guardian, who was their father, being destitute of means to support and educate Ris children and wards, was compelled to apply thereto the proceeds of said real estate, and now refuses to make claim against them on account thereof, is sufficient.</p> <p>Same. — Statute of Limitations. — An answer, in such case, by a surety, alleging that the cause of action did not accrue within three years next before the commencement of the action, is bad. <</p>

Relies on State ex rel. Druliner v. Clark · Myers v. State ex rel. Appleton · Haase v. Roehrscheid

Good law ✅— No negative treatment on recordhow we know

Decided 1881-11-15

How this case has been cited

Cited by 7 later decisions — most recently February 1910

7 state decisions

301881189019001910decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Petition for a Rehearing.

Elliott, C. J.

¶2In the former opinion, we treated this cáseas within the rule in Myers v. The State, ex rel., 45 Ind. 160, and, notwithstanding appellees’ elaborate argument, we have seen no reason to change our minds. We are satisfied that the principle there approved is a sound one. If children possess an estate, their father and guardian none, and both children and father are'unable to work, the estate of the former may justly be applied to their education and maintenance. It is better that their estate should be used for their education and sup*67port than that they should lack the ordinary comforts of life, or grow up without the important benefit of an education.

¶3The proper way, undoubtedly, is for a guardian to apply to the court for an order directing the use of the money of the ward for his education and maintenance. We are not willing, however, to hold that, because he does not make such an application, he can not, when sued upon his bond, show in defence a just and reasonable application of the money of his ward to that purpose. We think the case of The State, ex rel., v. Clark, 16 Ind. 97, cited in Myers v. The State, ex rel., settles, and rightly settles, the principle that, although no allowance has been made for money so expended, the guardian may, in defence to an action on the bond, avail himself of such expenditures. The case of Haase v. Roehrscheid, 6 Ind. 66, establishes the rule that even a father will be allowed for the education of the child, if he is unable to himself educate it.

¶4In cases where no allowance has been made, the burden is upon the guardian to show the inability of the father to support and educate the child, and the inability of the child to earn its own support, as well as the honest and reasonable use of money for that purpose.

¶5Petition overruled.

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