The plea does not show that the execution of the bond was obtained under such circumstances as that the defendants are able to aver and prove that the bond is not their deed, but they do allege certain facts from which they claim that they ought to be allowed to avoid the deed, notwithstanding they freely and intelligently executed and delivered it to the judge of probate. The plea does not show that the female ward, for whose benefit it is alleged that the suit is brought, is the only person interested in the bond, which is held by the judge of probate for all the parties who may have any interest in that fund.
Whatever may be the result, when the question arises as to the amount equitably due to the party now appearing to be the party in interest, I think it is certain that the bond itself cannot be avoided by such plea. *Page 453
I cannot withhold the suggestion, that it would seem to me very strange if this guardian and his sureties could defeat the claims of the ward, by showing that he had violated his trust and succeeded in corrupting her, the person who, by reason of her tender years, had been placed by the law under his keeping; and it certainly would not alter the matter if it appeared that his corrupting influence had begun to operate before he assumed the trust.
SMITH, J. I agree that no defence is shown to this action; but, inasmuch as the defence has been conducted upon the theory that the facts set forth in the brief statement can be shown in the present stage of the case, instead of upon the hearing in chancery to ascertain for what sum the plaintiff in interest shall have judgment and execution, I may be allowed a few suggestions upon the nature of the defence here set up.
Whether Collins, the former guardian, was properly removed, and Cook, the present guardian, properly appointed, are questions that cannot be opened up in this way. The probate court had jurisdiction of the matter, and no appeal was taken from its action. It must be presumed that the removal and appointment were made Upon proper and satisfactory evidence. Cook being appointed guardian, the transfer of the funds from Collins followed, as matter of course. He and he alone was their proper custodian. Sureties were required upon his bond for the very purpose of answering for his malfeasance. His ward must be either an infant, spendthrift, or insane person (the case does not show which), but it cannot matter which. A guardian was made necessary because she was not a suitable person to have the control of her own funds. It was his duty properly to care for them, no matter what the wishes of his ward might be, and his sureties were bound to see that he did his duty.
If it should be held that this brief statement sets up a valid defence, the door is open to every guardian to conform to the wishes of his ward, instead of exercising his own sound judgment. The public interest requires that guardians should be held to a strict rule in the management of trust estates; otherwise, having allowed their wards to spend their substance in riotous living, the burden of their further support would often be thrown upon the public. It is not the policy of the law to encourage the making of paupers.
Exceptions overruled. *Page 454