#### American Surety Company of New York, Appellant, v. Eli S. Sperry, Guardian, Appellee.

1. Guardian and *ward—right of surety upon bond to discharge,*A surety upon a guardian’s bond has a right by petition to require his principal to account , and to give a new bond.

2. Guardian and *ward—when petition by surety should not be dismissed.*It is error for the court to dismiss a petition by a surety which prays for some relief to which he is entitled.

Petition for release of surety, etc. Appeal from the Circuit Court of Vermilion county; the Hon William B. Scholfield, Judge, presiding.

Heard in this court at the November term, 1909.

Reversed and remanded.

Opinion filed May 28, 1910.

L. Bi Atkins, O. M. Jones and W. J. Bookwalter, for appellant.

Bearick & Meeks, for appellee.

Mr. Presiding Justice Baume

delivered the 'opinion of the court.

On January 13, 1909, the American Surety Company of ¡New York filed its petition in the county court of Vermilion county, in the matter of the estate of Chester H. Chapman, a minor, then pending in said court, wherein it averred in substance, as follows: That on September 11, 1899, one Eli S. Sperry was duly appointed guardian of said minor and *20filed his guardian’s bond in the penal sum of $5000 with John W. Goodwine and Arminda Goodwine as sureties thereon; that, thereafter, on December 23, 1901, said Sperry as such guardian invested certain funds of said minor in real estate in the county of Vermilion in the State of Illinois, describing the same, and that said funds were not derived from the sale of real estate belonging to said minor; that on March 23, 1907, the said Sperry filed in said court his official bond as guardian of the said minor in the penal sum of $16,000 with the petitioner as surety thereon, setting out said bond *in haec verba;*that on October 5, 1907, the said guardian invested certain funds belonging to said minor in 167,753 acres of land in the county and state aforesaid, particularly describing the same, and that said funds were not derived from the sale of real estate belonging to said minor; that on March 27, 1908, the said Sperry as such guardian filed in said court his official bond dated March 26, 1908, in the penal sum of $22,000 with L. C. Messner and W. H. Rice as sureties; that it desires to be relieved and discharged from all further liability as surety upon the said bond of said Sperry as guardian of said minor. The prayer of the petition is that the said Sperry as such guardian of said minor be required to file in said court within a short day to be fixed by the court his report and account showing all his acts and doings as such guardian from the date of his appointment to the filing of said petition, and that he be required to restore the funds of his ward invested in real estate, as aforesaid, or to proceed to a sale of the said real estate for the purpose of re-investing the funds derived from said sale in such investments as may be authorized by law, and when such sale shall have been made, he be required to report the same to the court, and upon the approval of his accounts he be required to file a new bond with sureties to be approved by the court; and that the petitioner may thereupon be released and discharged from all liability upon the bond whereon it is surety.

On the same day the said petitioner filed its petition containing the like averments and prayers, in the matter wherein the said Sperry was guardian of Wilmer G. Chapman, a *21minor. To these petitions, Sperry, as guardian of said, min- or, interposed his general and special demurrers which were sustained by the county court and said petitions dismissed. From the order dismissing said petitions, the petitioner appealed to the circuit court, where on a hearing upon the demurrers to said petitions said demurrers were sustained and judgment entered against the petitioner in bar of said proceedings and for costs. From this judgment in said proceedings, as consolidated in the circuit court, the petitioner prosecutes its further appeal to this court.

The main question presented for our consideration and determination by counsel for both parties, is, whether or not it was within the power of the county court to direct the respondent, Sperry, as guardian of the minors, Chester H. and Wilmer G. Chapman, to invest the funds belonging to his wards, not derived from the sale of their real estate, in the purchase of real estate. There is no averment in the petitions that the funds belonging to his wards which are alleged to have been invested by Sperry in the purchase of real estate were so invested by the direction of the county court. It is elementary that on a hearing upon a demurrer to a bill or petition, facts extraneous of the petition cannot be considered in determining the sufficiency or insufficiency of such bill or petition. The question sought to be presented as above indicated, is, therefore, upon this record, purely academic.

Section 1 of an act entitled “An Act to provide for releasing sureties on the bonds of guardians,” etc., approved May 11, 1877, and in force July 1, 1877, provides: “That whenever any surety on the bond of any guardian, conservator of any idiot or insane person, or the trustee of any fund or property appointed by the court, or the heir, executor or administrator of such surety, desires to be released from further liability upon any such bond, he may petition the court in which said bond is filed for that purpose, and upon notice being given to such guardian, conservator or trustee in such manner as the court may direct, the court shall compel sitch guardian, conservator or trustee, within a *22reasonable time to be fixed by the court, to appear and settle his accounts and file in such court' a new bond with such penalty and security as may be approved by the court, which being done, the surety may be discharged from all liability on such bond.” Rev. Stat. 1908, 1495. The petitions here involved recite the desire of the petitioner to be released from further liability as surety upon the bonds of the respondent as guardian of Chester II. and Wilmer G. Chapman, minors, and pray that the respondent be required to file a report and account of his acts and doings as such guardian from the date of his appointment to the time of the filing of said petitions. Under the provisions of the section of the statute above quoted, it became the duty of the county court to grant the prayer of the petitions in the respect indicated, and the dismissal by said court of said petitions upon sustaining the demurrers thereto was error. Conceding that the allegations in the petitions did not warrant the court in granting the prayers of the petitioner in other respects, and that such allegations and prayers were obnoxious to the demurrers interposed thereto, the petitions should not have been dismissed, or judgment entered in bar of the proceedings, but such petitions should have been retained for a hearing upon that portion thereof which conformed to the provisions of the statute entitling the petitioner to be released as surety upon the bonds of the respondent. Gibbs v. Davies, 168 Ill. 205.

For error in entering judgment against the petitioner in bar of the proceedings such judgment is reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

*Reversed and remanded.*