JOHN LINK, ET AL.,
v.
MARY JANE LINK FRIOU, ET VIR.
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A guardian made an unlawful loan of ward funds in violation of state law, even though a county judge approved it. The Florida Supreme Court affirmed a judgment for the ward against the guardian and his surety, holding that judicial approval does not cure a violation of the statutory limitations on guardian loans.
The guardian and surety are liable for losses occasioned by an unlawful loan, regardless of judicial approval, unless the ward ratified the transaction after reaching majority. Receipt of the notes and mortgage and collection efforts alone do not constitute conclusive proof of ratification; the question of ratification is for the trial court to determine.
“The loan having been made in violation of law, although it was approved by the County Judge, the guardian and his security became liable to the ward for any loss occasioned by reason of the loan being made, unless it appears that the ward, after becoming of age, ratified the acts of the guardian and released the guardian and his surety from liability by reason of the making of such unlawful loan.”
Establishes that judicial approval does not cure a statutory violation and that guardians and sureties remain liable unless the ward ratifies after reaching majority.
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Join FLexlaw to unlock all legal intelligenceJohn Link was appointed guardian for his daughter Mary Jane Link, with Indemnity Insurance Company of North America as surety on the guardian's bond. …
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In this case the facts are that John Link was appointed guardian for his daughter Mary Jane Link. Indemnity Insurance Company of North America became surety on the guardian’s bond. Certain moneys came into *338the hands of the guardian and he made a loan from such funds to Virginia H. Jones and her husband, S. S. Jones. The loan was secured by a mortgage and was made on July 2, 1926, and was payable on September 29, 1928. The guardian filed petition with the County Judge praying authority to make the loan as guardian. An order was made and duly entered by the County Judge authorizing the guardian to make the loan, although it then appeared that such loan was' in violation of Section 3973 R. G. S., 5893 C. G. L., in that the loan was to run for a period of more than one year from the date thereof and was made on private security.
The loan having been made in violation of law, although it was approved by the County Judge, the guardian and his security became liable to the ward for any loss occasioned by reason of the. loan being made, unless it appears that the ward, after becoming of age, ratified the acts' of the guardian and released the guardian and his surety from liability by reason of the making of such unlawful loan.
The ward was married before she became of age and after becoming of age she demanded a settlement with her, guardian. No final, settlement was ever made and neither is theré any proof in the record that she ever accepted the mortgage and notes taken for this loan in settlement of any claim against her guardian or the sureties on the bond. It is true that the record shows that the notes and mortgage were delivered to her by her guardian after she became of age and that she made some effort to collect the amount of the loan from the mortgagors. This may be construed as some evidence of ratification, but we do not think that it constituted conclusive proof of ratification and the question of whether or not she ratified the unlawful loan was one for determination by the Chancellor in the trial of the cause *339when she instituted and prosecuted her suit against the guardian and his surety to recover the money unlawfully loaned.
The decree in this suit was in favor of the ward against the guardian and sureties on his bond. We find no reversible error in the record. Therefore, the decree should be affirmed and it is so ordered.
Affirmed.
Whitfield, Ellis and Buford, J. J., concur.
Davis, C. J., and Brown, J., dissent.
Terrell, J., not participating.
(dissenting).—I think that implied ratification at least was shown in this case.
Davis', C. J.
(dissenting).—I think that implied ratification at least was shown in this case.
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Krivitsky v. NYE, 155 Fla. 45 (Fla. 1944)…rety Co. v. Andrews, 152 Fla. 638, 12 So. (2nd) 599; McBride v. McBride, 142 Fla. 663, 195 So. 602; Carroll v. Carroll, 127 Fla. 226, 172 So. 916; Grant v. Amiker, 120 Fla. 356, 162 So. 712; Ex parte Hansen, 120 Fla. 333, 162 So. 715; Link v. Friou, 116 Fla. 337, 156 So. 719; Allen, v. Allen, 111 Fla. 733, 150 So. 237; Cole v. Cole, 106 Fla. 226, 143 So. [*50] 235; First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370; Opitz v. Morgan, 68 Fla. 469, 67 So. 67; Benedict v. Wilmarth, 46 Fla. 535,…
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Am. Sur. Co. OF NEW York v. Andrews, 152 Fla. 638 (Fla. 1943)…s recognized by this Court in the recent case of McBride v. McBride, 142 Fla. 663, 195 So. 602. See Carroll v. Carroll, 127 Fla. 226, 172 So. 916; Grant v. Amiker, 120 Fla. 356, 162 So. 712; Ex Parte Hansen, 120 Fla. 333, 162 So. 715; Link v. Friou, 116 Fla. 337, 156 So. 719; Allen v. Allen, 111 Fla. 733, 150 So. 237; Cole v. Cole, 106 Fla. 226, [*646] 143 So. 235; First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370; Opitz v. Morgan, 68 Fla. 469, 67 So. 67; Benedict v. Wilmarth, 46 Fla. 535,…
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Carroll v. Carroll, 127 Fla. 226 (Fla. 1937)…ueless by unauthorized dealings with guardianship trusts, even when done in actual good faith and for no fraudulent purpose in fact. Linton v. Walker, 8 Fla. 144, 71 Am. Dec. 105; Sanderson’s Adm’r v. Sanderson, 17 Fla. 820, text 861; Link v. Friou, 116 Fla. 337, 156 Sou. Rep. 719. Nor was it any objection in law to liability on the guardian’s bond that the bond was not approved by the County Judge. Failure to approve a bond does not invalidate it as to liability of principal and sureties where the parties…
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