should first apply to the court for a rule on the receiver to render his account. When the account is approved, and an order made to pay the amount due, a failure to pay enables the plaintiff to sue upon the bond. The order of the court is necessary before the sureties can be sued.46 The condition of the bond is that the principal will discharge his duties as receiver and account to the court. Until he has failed to obey an order of the court in relation to the property in his hands, the receiver has not broken a condition of the bond.47

§ 308. The effect upon the surety of judgment against the receiver. Sureties are not bound beyond the plain terms of their engagement, and in interpreting their contracts, the rules governing the construction of contracts generally are applicable. The intent is to be ascertained from the language used.48 When a surety undertakes to perform the judgment of the court against the receiver, it is clear the judgment should be conclusive on him, because he so agreed.49 In the absence of explicit language to be responsible for any order of the court, there is

authority that judgments against the receiver should be only prima facie evidence against the surety.50

Lord Eldon recognized the duty of equity to protect the surety for a receiver by retaining any funds due the latter for the protection of the surety:

"Where the surety for a receiver in this court is called upon to pay, as the receiver is an officer of the court, and the surety is so in a sense, if there is anything due in account between them, justice requires, that upon the application of the surety he shall be indemnified for what he has paid for the receiver out of the balance due to him. If that has not been decided, as I think it has, it must be decided upon principle; as it is clearly capable of being maintained upon equitable grounds. The court therefore cannot part with the fund, until opportunity is given of determining the claim of the surety; the amount of which, when ascertained, must be paid to him; and the residue only must be paid to the receiver.'' 51

direct. It contains both covenants. Now, while there is a difference of decision in very many cases as to the effect upon sureties of judgments upon such ordinary official bonds, the authorities are overwhelming, and almost without exception, that upon such a bond as we have in hand the judgment is conclusive.' State to the Use of Beard, Special Commissioner v. Abbott et al. (1907) 63 W. Va. 189, 61 S. E. 369, 371.

50"In every decision which has made the adjudication against the principal conclusive upon the surety, it has been founded on apt words or phrases other than a general promise to perform duty, and which indicated an understood purpose to contract beyond the ordinary liability. Where the condition of the bond is to obey the orders of the surrogate, to pay any deficiency arising on a foreclosure to pay all damages and costs that may be recovered, there is apparent on the face of the instrument a purpose to

submit to the judgment as conclusive."

"As between the principal and the creditors of the fund it is the receiver's duty to pay according to the order, for he has been heard and is bound by the adjudication. But as between the surety and such creditors it is not the receiver's duty to pay according to an order made without the surety's knowledge, as to which he has not been heard, and which is not, against him, a binding adjudication.' Thompson v. MacGregor (1880) 81 N. Y. 592, 598-599.

See Savings Bank of Baltimore v. Weeks (1906) 103 Md. 001, 64 Atl. 295; Commonwealth v. Gould (1875) 118 Mass. 300; Ball V. Chancellor (1885) 47 N. J. L. 125; Garver et al. v. Tisinger et al. (1888) 46 Oh. St. 56, 18 N. E. 491.

51 Glossup v. Harrison (1814) 3 Ves. & Bea. 134, 35 Eng. Reports Reprint 429-430.

The surety, after having paid the obligee, without action against the principal, may recover in equity receivership funds or property in the hands of third persons who knew on receiving it that it was held in a fiduciary capacity.52

55

§ 309. Guardians. There are There are two kinds of guardians: guardians of the person, and guardians of the estate. The former has control of the person, support and education of the ward. The latter controls his property.58 In the absence of statute, the same person may be guardian of both the person and property of a ward, and by some it is believed that there should not be two persons to care for the person and estate of a ward.54 The fact that one is appointed guardian of the estate does not signify that he has any authority to control the person. Other authorities would parcel the duties to two persons, and in some jurisdictions the same person cannot be guardian both of the person and property of a ward.56 Ordinarily, no guardian of the person of an infant is appointed so long as the parents are living, and capable of acting; but it frequently becomes necessary that there be a guardian of the property of an infant, though the natural protector is living. When necessary to protect the property of any person who is incompetent to act, a court of equity has power to make the selection of a guardian.57 A statute, therefore, authorizing a court of general

52"By the well settled doctrine of equity a constructive trust arises whenever one party has obtained money which does not equitably belong to him and which he cannot in good conscience retain or withhold from another who is beneficially entitled to it, as for example, as when money has been acquired through breach of trust or violation of a fiduciary duty, and the like." Clark, Adm'x v. First National Bank of Harrisonville (1894) 57 Mo. App. 277, 286.

53 Ex parte Grimes (1919) Texas Court Civ. App. 216 S. W. 251, 253. 54 In re Ross (1895) 53 N. J. Eq. 344, 35 Atl. 48.

55 Matter of the Heather Children (1883) 50 Mich. 261, 15 N. W. 487.

56 Lawrence et al. V. Thomas (1892) 84 Ia. 362, 51 N. W. 11. See Stafford v. Stafford (1921) 299 Ill. 438, 132 N. E. 452, 20 A. L. R. 827.

57 Ex parte Mountfort (1808) 15 Ves. 445, 33 Eng. Reports Reprint 822. In United States to Use of Hine v. Morse et al., Executors (1910) 218 U. S. 493, 505, 31 Sup. Ct. 37, 54 L. Ed. 1123. Mr. Justice Lurton said "the inherent power of a court of equity over the persons and estates of infants is very wide."'

jurisdiction to appoint guardians for infants, idiots and lunatics is declaratory of the power inherently possessed.58

One cannot bind another for whom he illegally assumes to act as guardian, though a court has approved the course. A legally incompetent person cannot be affected unless his interests have been protected by the legal acts of a guardian properly appointed by a court having jurisdiction. The protection of the ward is of first importance, superior to the rights of those who may lose by the acts of his guardian.59 Appointment of guardians can be made by order of court only, and cannot be made to relate back and validate acts previously done by the appointee.60 On the termination of the legal incapacity, as in the case of infants reaching majority, the guardianship ipso facto is determined. The court retains jurisdiction over the guardian after the relation is terminated for the purpose of compelling an accounting and settlement of his administration.61 In the absence of a statute, it seems contracts made for the benefit of the ward or his estate are not binding after the termination of the guardianship.62 The guardian acts under order of the court appointing him, and he is responsible to the court for his conduct.63

§ 310. Bonds of guardians. It is usual for the court to require a bond of any guardian; and, in some cases, as to sell real estate, a bond must be executed or a conveyance by the guardian will be set aside. The bond becomes necessary that the court may have jurisdiction to appoint.64 A single bond may be for the benefit of more than one ward,65 and an action may

58 Board of Children's Guardians of Marion County v. Shutter (1893) 139 Ind. 268, 34 N. E. 665, 31 L. R. A. 740, 742.

59 Hatch et al. v. Ferguson et al. (1893) 57 Fed. 966, affirmed by the Circuit Court of Appeals (1895) 68 Fed. 43, 15 C. C. A. 201.

60 Holden v. Curry et al. (1893) 85 Wis. 504, 55 N. W. 965.

61 People to Use of Sexton v. Seelye (1892) 146 Ill. 189, 32 N. E. 458, 464.

62 Jennings et al. v. Canady et al. (1926) 13 Fed. (2nd Ser.) 356, 358-359.

63 Westbrook v. Comstock et al. (1843) Walker's Ch. Rep. (Mich.) 314.

64 Williams v. Reed et al. (1827) 5 Pick. (Mass.) 480.

65 Brunson et ux. V. Brooks (1880) 68 Ala. 248; Winslow v. People (1886) 117 Ill. 152, 7 N. E. 135.

be brought by any or all the wards named therein.66 An additional bond given, by direction of the court, under authority of a statute, does not necessarily relieve the obligors on a prior undertaking.67 In some cases a special bond is given to cover a particular transaction, as the sale of real estate. The language of the statute in some jurisdictions is regarded as relieving the general bondsmen from liability for a default in the transaction for which a special bond was required.68

Sureties are estopped by the recitals of facts in their undertaking.69 Although the court may erroneously appoint the guardian, who executes a bond, neither he nor his sureties can deny liability thereon for money received for the ward, unless a statute or public policy prevents. The bond may be good as a common law undertaking.70

Usually the undertaking is that the principal will account for money and property received, which makes it immaterial whether it came into his possession prior to the execution of the bond, or subsequently."1

Any money of the ward in the guardian's hands at his death becomes a claim against his estate.72

§ 311. Breach of the bond. Since money has no ear marks, one receiving payment from a guardian in ignorance that it belonged to a ward, cannot be compelled to refund it; but if he

66 Walsh et al. v. State to Use of Walsh (1879) 53 Md. 539.

67 State to Use of Baird v. Hull et al. (1876) 53 Miss. 626.

68 Madison County v. Johnston et al. (1879) 51 Ia. 152, 50 N. W. 492, with which compare Hooks v. Evans et al. (1885) 68 Ia. 52, 25 N. W. 925; Morris v. Cooper et al. (1886) 35 Kan. 156, 10 Pac. 588; Henderson v. Coover et al. (1868) 4 Nevada 429; Johnson v. Chamberlin et al. (1897) 18 App. Div. 495, 46 N. Y. S. 132; Blauser v. Diehl et al. (1872) 90 Pa. St. 350; Commonwealth to Use of Boyer v. Pray (1889) 125 Pa. 542, 17 Atl. 450; Shelton et al. v. Smith et al. (1873)

62 Tenn. 82; Kester et al. v. Hill et al. (1896) 42 W. Va. 611, 26 S. E. 376.

But see the view expressed in Hart, Executrix et al. v. Stribling, et al. (1884) 21 Fla. 136.

69 Williamson v. Woodman (1882) 73 Me. 163.

70 McClure V. Commonwealth (1875) 80 Pa. St. 167.

71 Merrels, Judge v. Phelps et al. (1867) 34 Conn. 109. See State to Use of Towler v. Shackelford, Administratrix et al. (1879) 56 Miss. 648.

72 Inglehart v. State to Use of Roberts (1886) 106 Ind. 251, 6 N. E. 614, 616.