This action is brought, not against the ward, but against the guardian personally, counting upon several promises of the ward. The defendant by his plea in bar alleges, that, as to the claim set forth in the first count, it was presented to him, as guardian, within the six months after his appointment, *Page 5 duly allowed by him, and reported to the Probate Court; and as to the other claims, that none of them were presented to him within the time allowed by law, and that he has not paid all the debts of his ward, — so that he does not know, and cannot tell, whether there will be a surplus. To this plea the plaintiff has demurred.
The plaintiff, in support of the demurrer, objects to the sufficiency of the plea in this, that it does not allege that there is no surplus property in his hands, as guardian, and that it is not sufficient to allege simply that he cannot tell whether there will be a surplus or not, and that, because he has not paid all the debts of the ward. If it were necessary for the defendant to aver this negative fact, and the burthen were on him to show that no surplus existed, we think, clearly, it is not sufficiently set forth in this plea, and that the defendant should have averred directly the want of such surplus.
Section 24 of Chap. 138, Of Guardian and Ward, provides, that "every creditor of the ward shall exhibit his claim to the guardian within the term of six months after notice given" to exhibit them, " or he shall be forever barred of all claim therefor against the guardian, unless there shall be surplus property in his hands, after paying all debts, and expenses, and allowances made by the Court of Probate." It was not necessary for the plaintiff to anticipate the defence to be set up in the suit, by averring in his declaration the fact, that he exhibited his claim to the guardian within the time prescribed; though he could not recover if his neglect to do so is made to appear, but it is matter of defence to be pleaded, and the terms of this section of the act declare, that such neglect shall bar the action, unless avoided by the fact that there remains a surplus in the guardian's hands, for the payment of the claim. If there be, in fact, such surplus, the plaintiff may reply to the defendant's plea, and thus avoid the bar which the act provides.
It was quite sufficient for the defendant to have averred, that the plaintiff did not exhibit his claim within the time prescribed, since such neglect is declared a bar to his action; and all the other averments of the plea may be treated as surplusage. *Page 6
The defendant need not anticipate the plaintiff's reply, any more than the plaintiff need the plea of the defendant. The burthen is upon the plaintiff to avoid the bar, by showing that there is, notwithstanding his neglect, in the hands of the guardian means to pay the debt now demanded. The plea, therefore, is sufficient, and would be, upon the assumption that an action could be sustained against a guardian, personally.
But this demurrer brings in question the sufficiency of the declaration. The plaintiff has counted against the guardian, personally, upon the promises of the ward, and not against the ward, who made them; and the question is, if such an action can be maintained. If this question were now for the first time raised, we should find no difficulty in overruling the position of the plaintiff, that the statute authorizes or requires a suit against a guardian, personally, for the ward's debts. The analogy upon which the plaintiff lays great stress, entirely fails; — that of executors and administrators. In such cases, the testator or intestate being no longer in esse, there is no person, other than the executor or administrator, against whom an action can be brought to try the right; — and so, from the necessity of the case, the action must be against him. In such case, also, the title and interest in the estate personally devolves upon, and vests in, the executor or administrator. But it is not so in the case of guardian and ward. The original possessor and debtor is still in existence, and may be sued. The title to the property, real and personal, remains in the ward, as before the appointment of the guardian. Though the guardian is vested with a power, over the person it may be, and over the estate of the ward, he has no interest in any portion of it. But we consider this point as settled in this court, long since, by the case of Arnold v.Angell, 1 R.I. 289; in which it was held, that, as the statutes then stood, all actions for the debts of the ward must be against the ward; and that the statutes did not intend to subject the guardian to a judgment for the ward's debts. Since the decision referred to, the words "against the guardian" have been introduced into the 25th section of chapter 138 of the Revised Statutes. That section provides, that no action shall be sustained against a guardian *Page 7 within twelve months after his appointment, c., unless the claim exhibited is wholly, or in part, rejected by the guardian, "in which case, the creditor may bring his suit forthwith." Thus stood the provision, prior to the revision in 1857. After the word "forthwith," were, in that revision, added, the words "against the guardian." It is insisted that these words, in this connection, show an intent that the action should be against the guardian personally. The added words are no material addition to the implication arising from the limitation of suit for one year, in the former part of the section, and which were not held sufficient to warrant a suit against any other person than the ward. But if the language of the section should be held to require a suit against the guardian, personally, it must be confined to the case provided, viz.: one in which the claim has been rejected by the guardian, in whole or in part. We agree with the counsel for the defendant, that a right to sustain such an action must be given by statute, if it exist at all, and could not rest upon a rule of the common law. No one of the plaintiff's claims has been rejected, either in whole or in part; so that she would not fall within this special provision, if held to be in her favor. The allowance, by the guardian, of a claim presented to him, as required, does not authorize, and was not intended to authorize, a suit for the debt so allowed. It was intended as one mode of ascertaining the debt of the ward, so that thenceforth, it would be the duty of the guardian, to apply the property of the ward to its payment, as the Court of Probate should order; and upon his refusal, to render him liable to suit upon his bond, for refusal to perform that duty.
Upon this demurrer, the declaration being found to be bad, judgment must be rendered for the defendant, for his costs. *Page 8