Montana Attorney General Opinion 15-605

Opinion No. 605 Officel's--State Treasurer-Trust -Bond. HELD: The state treasurer's official bond cannot by order of court or other- wise be made to cover his acts as trus- tee of a trust created by will for the benefit of a private individual. August 31, 1934. You have asked our opinion on the qnestion of whether or lIot in the event you are appointed trustee by the dis- trict court to execute the trust created by the will of James, H. T. Ryman, de- ceased, the official bond you ga "e as state treasurer could be held to apply to the faithful performance of your duties as such trustee. It appears that Ryman (lied testate in Missoula County on June 1, 1926, and left a comparatively large estate. Among other things, his will in effect ga "e the income from bonds worth about $43,000.00 to one Mary Stewart during her natural life, and upon her death gave the bonds themselves to the State of Montana "as a permanent endowment for the uses of the Uni- versity of Montana, at Missoula, Mon- tana." The will was admitted to pro- bate on July 10, 1926. The Western ~fontana National Bank and .Joseph l\:£. Dixon, executors of the will, acted to- gether as trustees of the property in question and paid the income there- from to the beneficiary up to the death of the latter a few months ago. The former contemplates reSigning from the tl'Ust and asking for its discharge as trustee as soon as a suitable successor can be found. Miss Stewart is still alive, being now about 58 years of age. 'l'he provisions of the first paragraph of section 192, Revised Codes 1021, as amended by section 1 of Chapter 157, Laws of 1931, can have no application to the situation before us for it is altogether clear that at this stage of the administration of the trust the state treasurer in his official capacity is not entitled to receive or to have the custody of the bonds. Only the person appointed by thf> court as trus- tee in succession to the Western Mon- tana National Bank may rightfully claim possession of the bonds and he must hold them until the death of Miss Stewart, be that event near or remote. The sureties on the bond of the state treasurer can be held to answer for his acts or omissions only according to the tenor of their undertaking and this is that he "shall well, truly and faith- fully perform all official duties then required of him by law, and also such additional duties as m!!y be imposed on him by any law of the state subse- quently enacted, and that he will ac- count for and pay oyer and deliver to the person or officer, entitled to re- ceive the same, all moneys or other property that may come into his bands as such officer." (Section 475, Revised Codes 1921.) Obligations of this kind OPINIONS OF THE ATTOHNEY GENERAL 415 are strictissimi juris. Sureties have the right to rely upoa the letter of their undertakiugs, and their liability cannot be extended by implication. A public officer's sureties are only responsible for the duties assigned such officer by the law. Where the law defines the duties of a public officer, as it does here, his sureties are responsible for the faithful performance of such du- ties, and are not responsible for acts which do not pertain to his office. It is well settled that sureties upon an official bond are not Jinble for money or securities not receh'ed by the offi- cer as a part of the duties of his of- fice. (City of Butte v. Bennetts, 51 ;\lont. 27, Ann. Cas. 1918C 1011.); Power County v. Fidelity & Deposit Co., 260 PIlC. 152; 46 C. J. 1068.) Our conclusion is, tlwrefore, that the state treasurer's offidal bond cannot by order of court or otherwise be made to cover his acts as trustee of the trust property spoken of above.