The following opinion on motion for rehearing was filed
Judgment of district court reversed.
*516Heard before Letton, Rose, Dean and Day, JJ., Redick and Blackledge, District Judges. Blackledge, District Judge.This case is before us for a second consideration. An opinion was heretofore adopted which is reported, ante, p. 508, and upon motion for rehearing further argument was ordered and we are now to determine the status of the case upon final consideration.
The questions involved depend for their solution upon the construction to be given to the statute which # provides the period within which actions may be commenced upon the bond of a guardian, section 8515, Comp. St. 1922, which reads as follows:
“No action shall be maintained against the sureties in any bond given by the guardian unless it be commenced within four years from the time when the guardian shall have been discharged: Provided, if at the time of such discharge the person entitled to bring such action shall be out of the state, or under any legal disability to sue, the action may be commenced at any time within five years after the return of such person to the state, or after such disability shall be removed.”
The facts stated in the former opinion need not be here repeated except in so far as they appear necessary to a discussion of the propositions which are reexamined. The transactions which gave rise to this case occurred prior to the death of Michael J. Langdon, which event was on April 22, 1891. At and before his death his wife, Margaret Langdon, was his guardian, and this suit is upon her bond *517as such guardian. Nothing in the way of administration of the estate of the decedent was had until December 12, 1902, nearly 12 years after the death.
There are three propositions urged for our consideration, which are: First, whether the “discharge” of the guardian contemplated by the statuté under consideration is that which may occur upon the filing of his final account and his discharge or removal by the county court, or whether it is the termination of the guardianship which takes place upon the death or arrival at majority of the ward. There is much discussion and conflict of decision by the different courts upon this proposition. This court upon a full consideration of the question, in an opinion by a jurist of recognized ability and renown, has held that the discharge, within the meaning of this statute of limitations, takes place upon the termination of the guardianship, and that, as to the sureties, the period of limitation begins to run on such date, and not from the time when the cause of action has accrued upon final settlement or accounting by the guardian. We think no good would be accomplished by further consideration of the question, and hold that the former opinion in this case was right upon that proposition. Goble v. Simeral, 67 Neb. 276; Gronna v. Goldammer, 26 N. Dak. 122, Ann. Cas. 1916A, 165, note 170-183.
Second, that the “person entitled to bring such action” in this case means William K. Langdon, for whose benefit it is alleged this case is prosecuted.' Appellants contend that the administrator of the estate of the deceased ward is the only person who could maintain the action, and that, therefore, the condition or situation of William K. Langdon, in so far as concerns his absence from the state or legal disability, is immaterial. The argument would be of governing force if there existed a positive requirement of law ■that in all cases of death of persons under guardianship an administrator should be appointed. There is no such requirement, and in this case the fact is that for 12 years next following the death of the ward no administrator was appointed. True, the administrator, where one has been *518appointed, is entitled to sue for and collect the assets of the estate; yet the position of appellants is, at least in part, foreclosed by the holding in Prusa v. Everett (on rehearing), 78 Neb. 251, to the effect that the heir may sue where the administrator refuses so to do. The case of Cox v. Yeazel, 49 Neb. 343, although denying the right to the heir to sue in that instance, recognizes his right to do so if there be no demands against his decedent ancestor and there has been no administration, or the administration has been closed. The principle is also recognized by the decisions in Cooley v. Jansen, 54 Neb. 33, to the effect that the right of the administrator to possession of the property of the decedent arises, primarily, from its being subject to the payment of his debts; and in Schick v. Whitcomb, 68 Neb. 784, wherein the heir was allowed to maintain a partition action upon the allegation that the proper debts and charges against the estate had been paid. We hold, under the facts of this case as stated, and where it is not shown that there was any debt of the decedent, nor any necessity for the administration of his estate, and no administrator was appointed or applied for, that the heir who was entitled to the proceeds of the demand in question should, in our determination of this question of limitation, be considered the person entitled to bring the action.
It is plain, of course, that, if none other than the administrator can sue, the statute of limitations began to run at .least upon the appointment and qualification of such administrator, and, being put in motion, continued to run until its term was complete and the cause became long since barred. The second and third administrators would take the business of the estate in the condition in which it was left by their respective predecessors in office, the whole administration being considered a continuous proceeding. Trumble v. Williams, 18 Neb. 144; Brown v. Jacobs, 24 Neb. 712; Comp. St. 1922, sec. 1466. This disposes of any claim of right by plaintiff herein to maintain the action in the capacity of administrator de bonis non of Michael J. Langdon.
*519Considering now, third, the question of the legal disability of William K. Langdon, the proposition urged upon the reargument seems to be somewhat divergent from the theory upon which the case was tried and submitted in the district court. In the former opinion we held that, where the son was under disability, the cause of action in his behalf was not barred by the statute until five years after the disability was removed. This, we think, is a proper statement of the law. The difficulty seems to be in its application to the facts of the case, as to which it now appears that both court and counsel overlooked a material element. In the former submission, appellants grounded their argument largely upon the proposition that none but the administrator could sue, and that the four-year period fixed by the principal clause of the statute under consideration effectively barred the action; while appellee contended that the legal disability of William K. Langdon by reason of nonage, his mental incompetency existing from and after the time when he attained his majority, and his absence from the state, served to bring the action within the terms of the statute. The plaintiff tendered an instruction, the statements of which were incorporated into the third instruction given by the court, to the effect that plaintiff was entitled to recover upon proof, of the execution of the bond, and that William K. Langdon had at all times since reaching his majority been mentally incompetent to transact business or have the care and management of his property.
It is said in the former opinion that the disability was removed in 1915, which date would authorize the maintenance of this present action. It is now urged that in order to reach such date there has been a “tacking” of disabilities unauthorized by law, in that the period of insanity or mental incompetency was added to the period of minority; and that the absence from the state is not material to be considered.
We are convinced of the correctness of appellants’ position in this regard. The date from which the statute operates, we have held, is of that of the discharge of the guardian *520by death of the ward, April 22, 1891. Under the plain terms of the statute, which will admit of no construction, the disability, in order to be effective, must exist “at the time of such discharge.” Many courts have held that a disability subsequently arising, even before the removal of the first, will not serve to extend the time beyond the removal of the originally existing disability. Hogan v. Kurtz, 94 U. S. 773; McDonald v. Hovey, 110 U. S. 619; Demarest v. Wynkoop, 3 Johns. Ch. (N. Y.) *129; Cozzens v. Farnan, 30 Ohio St. 491; Roelefsen v. City of Pella, 121 Ia. 153. It is not disputed that William K. Langdon resided and was within the state at the time of the death of his father. His subsequent absence and return to the state, at whatever time, would be immaterial. He was then also a minor and attained his majority in 1906. In 1907 he was declared insane and committed to a state hospital at Nevada, Missouri, from which insitution he was discharged in 1915. He returned to Nebraska, for a brief period that same year, during which time he instituted in his own name the proceedings in county court. which eventually furnished the basis for this suit, which was commenced September 3, 1918. Therefore, the only disability under which he is shown to have stood at the time of the discharge of the guardian was that of minority. This was removed when he became of the age of 21 in the year 1906, and this we find to be the correct date of the removal of his disability as affecting this suit. Such date was more than five years prior to the commencement of this action.
There is some basis in the evidence for the contention that the mental incompetency of William K. Langdon existed for some considerable period prior to the date when he was declared insane in 1907; but there is no issue raised in the pleadings that it existed at the time of the death" of his father, and the .theory upon which the case was tried, as indicated by the instruction tendered and given, to which reference has been made, was based upon his absence from the state and disability existing “at all times since reaching his majority.” ,
*521That paragraph of the former opinion, in which it is stated that the disability was removed in 1915 will therefore be withdrawn. The conclusion to which we have come upon further examination of the case, as herein expressed, makes it necessary that the judgment of the trial court be reversed and the cause remanded, which is accordingly done.
Reversed.