MOSES BAIRD, APPELLANT,

v.

H. A. STEADMAN, GUARDIAN AND TUTRIX OF FRECIE STEADMAN, BERTIE STEADMAN AND ARMIE STEADMAN, MINORS, APPELLEES

Carter., J.:

It is not contended by appellant that the defendant, Mrs.

II. A. Steadman, either individually or as guardian, ever promised, impliedly or expressly, to repay the amounts expended by him for the life insurance policy upon the life of W.

A. Steadman. The declaration alleges that these amounts were expended by appellant at the request of Mrs. Steadman, as guardian (which was denied by her pleas), but no proof of this allegation was even offered upon the trial. The theory upon which appellant sought to recover is fully stated in the instruction requested by him, but refused by the Circuit Court. This theory is untenable.' An action of this character can not be maintained against a guardian upon a contract, express or implied, made by the ward, or some other person for him, but only upon a contract made by the guardian himself. The property of the ward can not be reached by a general judgment against the guardian, because the ward is not a party to the judgment. If the guardian himself makes a contract, though such contract be for the denefit of his ward, it will be binding upon the guardian, personally, and he maybe sued upon it; but the judgment recovered will not bind the ward or his property. If the cause of action is of that character which the law recognizes as binding upon the ward, the ward may be sued, and the judgment obtained be enforced against his property by appropriate proceedings. Spring vs. Woodworth, 4 Allen, 326; Creswell vs. Matthews, 52 Ark. 87, 12 S.

W. Rep. 158; Tobin vs. Addison, 2 Strobh. (Law) 3; Robinson vs. Hersey, 60 Maine, 225; Wallis vs. Bardwell, 126 Mass. 366; Allen vs. Hoppin, 9 R. I. 258; Cole vs. Eaton, 8 Cush. 587; Morris vs. Garrison, 27 Pa. St. 226; 3 Wait’s Actions & Defenses, p. 572, sec.

8. The same rule prevails as to guardians of spendthrifts and lunatics. Brown vs. Chase, 4 Mass. 436; Willard vs. Fairbanks, 8 R. I. 1; Coombs vs. Janvier, 31 N.

J. Law, 240; Inhabitants of Raymond vs. Sawyer, 37 Maine, 406. In the case of Call vs. Ward, 4 Watts & Serg. 118, S. C. 39 Am. Dec. 64, it was held that an action of indebitatus assumpsit would not lie against a guardian for necessaries supplied to the ward without the guardian’s consent, the court observing that the guardian could only be held liable for his own contracts, and that the proper remedy, where the guardian had not made the contract, was by an appropriate action against the ward. Even if the expenditures made by appellant for the benefit of defendant’s wards were necessar ies (as to which we express no opinions), the proper remedy of the appellant would be an action against the wards, and not against the guardian. Authorities first cited supra.

However meritorious the cause of action may be against the ward, a proceeding of this character against the guardian can not be sustained. Some of the objections to such proceedings are pointed out by the court in Coombs vs. Janvier, supra. “It is the duty of the court to apply the ancient principles of the law to new cases. We can not innovate where the practice, in analagous cases, is established. To do so in the present case would be attended with much inconvenience. A new system of pleading and procedure would have to be devised and applied. What pleas could be putin; what the form and extent of the judgment; what the effect of such judgment, after the discontinuance of the guardianship; all these and many other points would call upon the courts for adjustment.” A guardian, unlike an administrator or executor, does not take title to the personal estate. He manages and controls”it subject to the limitations imposed by law, but the title remains in the ward. In the case of an •administrator, or executor, the testator or intestate being no longer in esse, there is no person other than the executor or administrator against whom an action may be brought; while in the case of a guardian, his ward lives and is subject to be sued for such liabilities as are legally binding upon him. Although the guardian is invested with a power over the person and property of the ward, he has no interest in such property, except such as spring from his right to possession.

Without passing upon the admissibility of the excluded evidence, we think that had it been admitted it could not have changed the result; and even if the instruction given by the court was erroneous (which we do nob pass upon), the error was without injury to the appellant. Herman & Co. vs. Williams, 36 Fla. 136, 18 South. Rep. 351.

The judgment of the Circuit Court is affirmed.