DEEGAN VS. DEEGAN (GUARDIANSHIP)

Key holdings

Practitioner summary

Action by a ward, through successor guardian Henry Neligh, on a testamentary guardian's $5,000 bond after the district court removed Thomas Deegan for refusing to account and, on settlement of his final account, found $574.10 due plaintiff out of $1,286.40 received. Murphy, C. J., affirmed the judgment for plaintiff and the order appealed from. The challenge to the removal and successor appointment was a collateral attack on which the district court's jurisdiction is conclusively presumed (Van Fleet, Collateral Attack secs. 2, 3, 841; Black, Judgments sec. 271); appearance by attorney dispensed with service of the citation, and the attorney's authority is presumed on collateral attack (Carpentier v. City of Oakland, 30 Cal. 446). Under Gen. Stats. sec. 583 (guardian accounts governed by executor/administrator account law) and sec. 2897 (letters may be revoked in the court's discretion for neglect or refusal to render an exhibit after due citation), and Const. art. VI, sec. 6 (district court jurisdiction over persons and estates of minors), the removal was authorized, and the judgment concludes the sureties equally with the guardian (Brodrib v. Brodrib, 56 Cal. 563). On the bond defenses: a demurrer for defect of parties plaintiff will not lie unless the complaint affirmatively shows the omitted obligees were living when suit was commenced, and the answer's non-joinder plea was defective for the same omission; pleas in abatement are disfavored and strictly construed. A guardian's bond covering several wards jointly is not void - the omission of 'severally' neither weakens the bond nor releases the sureties nor bars an individual ward's action, the guardian's duties being several in nature (Ordinary v. Heishon, 42 N.J. Law 17; Pursley v. Hayes, 22 Iowa 28). The allegation that the guardian converted $574.10 of the ward's money to his own use sufficiently charged a breach of the bond's condition of faithful performance, any formal defect being waived by the general demurrer, and conversion of trust funds is itself a breach for which sureties are responsible (Irwin v. Backus, 25 Cal. 221).

In plain language

M. W. Deegan's will named Thomas Deegan as guardian of the person and estates of his minor children John J., Thomas, and Michael Deegan. Thomas Deegan qualified as guardian on or about July 23, 1888 by filing a $5,000 bond. He never filed any account of his guardianship, and after being cited to account in 1893 and given extensions, he still failed to do so, so the district court revoked his letters on July 25, 1893, removed him, and appointed a new guardian (Henry Neligh, selected by the minor) the same day. One of the wards, suing through the new guardian, then brought this action on the bond, and the district court entered judgment for the ward. The guardian's final account had been settled, with $574.10 found due the ward out of $1,286.40 the guardian had received. On appeal by the defendants, the Nevada Supreme Court affirmed. The defendants' attack on the removal and the new appointment was a collateral attack on the guardianship court's judgment, and the district court's jurisdiction is conclusively presumed in that setting; the guardian had also appeared through an attorney, which made service of the citation unnecessary. The court rejected the technical defenses to the bond: a single bond given for several wards is valid, the omission of the word 'severally' does not release the sureties or prevent one ward from suing alone, and a plea that other obligees were not joined fails unless it affirmatively shows the omitted parties were alive when suit was filed. Converting a ward's money to the guardian's own use is a breach of the bond for which the sureties answer.