Mason v. Lawyers Surety Corp.

[636]Opinion

STEIN, J. Lawyers Surety Corporation (surety) appeals from an order granting the petition of Jeanette Marie Mason to surcharge the guardian of her estate and ordering the surety to make payment on the bond. On appeal, the surety contends that the court erred in applying the specific statute of limitation set forth in Probate Code section 2333, instead of Code of Civil Procedure section 337.

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We hold that Probate Code section 2333 is the applicable statute of limitations.

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Facts

On June 18, 1981, John K. Spencer, Jr. (guardian), was appointed as a successor guardian of the ward, Jeanette Marie Mason. On May 5, 1982, Mason attained the age of majority. On September 2, 1982, the guardian filed a petition for settlement of the first and final account.

On September 30, 1982, the probate court settled the account and ordered the guardian to distribute to Mason the guardianship property total-ling $78,310.07. The guardianship estate consisted of the following: (1) $19,810.07 in cash, (2) a promissory note for $50,000 due May 11, 1983, and (3) certain real property in Mendocino County valued at $8,500. The order further provided that the guardian would be discharged on May 5, 1983, if he petitioned the court for discharge and filed receipts from Mason showing that she had received the estate property.1

On June 1, 1988, Mason filed a petition to surcharge the guardian and order payment from the bond. In the verified petition, Mason alleged that she had no notice of the September 30, 1982, order requiring Spencer to [637]immediately distribute the estate property. Instead of distributing the property to her, the guardian converted much of it to his own use. He did, however, make incidental payments totalling $43,550, including: (1) in October, November and December 1982, payments totalling $8,700; (2) in August 1983, a payment of $15,000; (3) in December 1983, a payment of $10,000; and (4) in September and December 1984, payments of $1,000 and $350, respectively. After the last payment, the guardian “disappeared” and Mason did not know what action to take. Sometime in 1985 Mason learned that her younger sister had successfully brought legal action against the guardian, and Mason thereupon obtained independent counsel. The petition alleged that after giving credit for the payments made and calculating interest due, the total amount owed to Jeanette Marie Mason was $63,840.68. The petition also sought an award of punitive damages.