Richardson v. Royal Indemnity Co.

[558]

SHENK, J.

— This is an appeal by the plaintiff from an adverse judgment and order. F. L. Richardson, as administrator of the estate of Anna Baxter, deceased, filed a second amended complaint “for an Accounting and Recovery of Money” against Kathleen C. Bach as administratrix of the estate of Charles T. Chandler, deceased, and the Royal Indemnity Company.

The second amended complaint alleges the following facts: In 1908 Anna Baxter was adjudged an incompetent and John R. Baxter was appointed guardian of her person and estate. He died in 1918, whereupon Charles T. Chandler was appointed his successor. Chandler filed a bond in the sum of $60,000 executed by the defendant, the Royal Indemnity Company, as surety. He served in the capacity of guardian until Anna Baxter’s death in March, 1922. In June, 1922 Chandler filed his third and final account as guardian, showing $31,295.25 of assets on hand. The account was approved as filed. Chandler was appointed administrator of the decedent’s estate. He was directed by the decree approving and settling his account as guardian to turn over the assets shown by his guardian’s account, namely $31,295.25, to himself as administrator. The Royal Indemnity Company was also the surety on Chandler’s bond as administrator. It is further alleged that the sum of $15,122.55, evidenced by certain certificates of deposit, was also an asset of the estate during the time of Chandler’s administration as guardian, that said sum was never accounted for by Chandler as guardian, but that it was fraudulently appropriated by him to his own use. As administrator he filed a final account which also did not show the $15,122.25 of additional assets. Chandler died in 1935 and before a hearing on the final account.

The plaintiff, F. L. Richardson, succeeded Chandler as administrator of the Anna Baxter estate. R. F. Smith was appointed administrator of Chandler’s estate. Smith as administrator filed in the Baxter estate an amended account on behalf of Chandler purporting to show that there were assets in the sum of $17,901.53 unaccounted for belonging to that estate. The final account filed by Chandler and the amended account filed by Smith came on for hearing. The probate court approved the final account filed by Chandler. Its order approving Chandler’s account and refusing to approve Smith’s, was affirmed by this court on February 14,