1. A statute authorizing judgment against the sureties of an
appeal bend, as well as against the appellants, in case of
affirmance, is not unconstitutional.
2. A territorial legislature, having by its organic act power
over all rightful subjects of legislation, is competent to pass
such an act.
3. An administrator
de bonis non cannot sue the former
administrator or his representatives for a devastavit, or for
delinquencies in office, nor can he maintain an action on the
former administrator's bond for such cause. The former
administrator, or his representatives, are liable directly to
creditors and next of kin. The administrator
de bonis non
has to do only with the goods of the intestate unadministered. If
any such remain in the hands of the discharged administrator or his
representatives, in specie, he may sue for them either directly or
on the bond.
4. Regularly, a decree of the probate court against the
administrator for an amount due, and an order for leave to
prosecute his bond, are prerequisites to the maintenance of a suit
thereon.
One Hinckley died at Santa Fe, in the Territory of New Mexico,
in October, 1866. At the time of his death he was a member of a
mercantile co-partnership, consisting of himself and two persons
named Blake and Wardwell, and they carried on business at Fort
Craig and other places in the Territory of New Mexico.
In November, 1866, one Beall was appointed "administrator and
executor of the estate of Hinckley, according to the last will of
the deceased," and upon such appointment gave a bond with himself
as principal and one Staab and others as sureties, conditioned in
the ordinary form:
"To account for, pay, and turn over all the moneys and property
of the said estate to the legal heirs of the said deceased,
Page 83 U. S. 536
and to execute the last testamentary will of the said deceased,
and to do all other things relative to the said administration as
required by law, or by the order of the Probate Court of the county
of Santa Fe, or any other court having jurisdiction in the
matter."
In pursuance of his appointment, Beall filed in the probate
court an inventory of the assets of the estate, in which, among
other things, he said:
"The property, rights, and credits of the said deceased, so far
as the undersigned, executor, has been able to obtain a knowledge
thereof, were, at the time of his decease, as follows:"
"The firm or partnership of which the deceased was a member with
Blake and Wardwell, were owing the said deceased the sum of
$46,538.60. The undersigned being satisfied that th sum stated is
correct, has agreed to receive of the said Blake and Wardwell, in
full discharge of the capital and profits of the said deceased, the
aforesaid sum. The said Blake and Wardwell have agreed to pay the
said sum as soon as they can arrange their affairs to do so, and
within a reasonable time. The undersigned is satisfied that the
said arrangement is the best he could make for the interest of the
estate, and that the payment will be made in due time."
He subsequently ($5,000 of the sum having in the meantime been
paid), rendered an account to the court of probate, in which he
charged himself with a balance due from Wardwell and Blake, in this
manner:
"April 30th, 1868, to amount due from Wardwell and Blake,
$41,556.25."
In January, 1869, Beall, who was an officer of the army and
expected to be ordered away from New Mexico, resigned his office of
administrator, leaving the amount due from Blake and Wardwell
unpaid, and in October, 1869, one Griffin was appointed
administrator
de bonis non to succeed him. Directly after
this, that is to say, in November, 1869, a suit by the Territory of
New Mexico, on the relation of this Griffin, was brought in the
district court for the County of Santa Fe against Beall as
principal and Staab and the others, his sureties, upon the
administration bond which he and they had given on his
appointment.
Page 83 U. S. 537
The breaches of the bond assigned in the declaration were, in
substance, that Hinckley's interest in the co-partnership referred
to, at the time of his death, was worth $60,000; that the effects
of the firm consisted of merchandise, real estate, mines, and
credits; and that Beall unlawfully and by verbal agreement disposed
of the same for $46,500 to Wardwell and Blake, the surviving
partners, thereby allowing the interest of the deceased to remain
in their possession, and by them (and Beall) to be converted to
their own use, and that he neglected to pay over and account for
the same; also, generally, that through his want of attention and
neglect assets of the estate to the amount of $60,000 were wholly
lost, wasted, and dissipated.
The case having come on to be tried before a jury, Griffin, the
administrator
de bonis non, was examined as a witness for
his own side of the case. He said:
On examination in chief:
"I had frequent conversations with Beall. I asked him why he had
not taken some security; I told him I thought it was not safe;
asked him if he had any note for the amount; he said he had not;
all he had was in the inventory;
when he sold the
property, he supposed they would pay for it. After my
appointment Beall delivered to me a paper [produced], purporting to
be an abstract from the books of Hinckley, Blake & Wardwell,
showing the condition of the account of Hinckley with the firm, and
said it was a true statement."
"[The paper, which was a debit and credit account containing
many items on both sides and ending in a balance of $46,538.60, was
read to the jury.]"
On cross-examination, the witness, being asked by the
defendant's counsel if Beall had ever told him that he had sold
Hinckley's interest to Blake and Wardwell, answered:
"I don't recollect that
he ever told me so; I inferred
so from Beall's conversations, who treated it as a sale."
The judge charged the jury as follows:
"On the part of the plaintiff it is contended that Beall, as
administrator of Hinckley, deceased, sold the interest of
Hinckley's
Page 83 U. S. 538
estate in the property and effects of Hinckley, Blake &
Wardwell to Blake and Wardwell, the surviving partners of the firm,
for the sum of $46,538.60, on credit, without taking any security
for the same. In the opinion of the court, the statements of the
inventory filed by Beall in the probate court, which are evidence
in the cause, and the evidence of Elkins, establishes the fact of
such sale. By selling this property on credit, Beall becomes
personally liable in law to the estate for the amount for which the
property was sold; and if the jury, from the evidence, arrive at
the same conclusion with the court, they should find for the
plaintiff and assess his damages at $41,556, with interest at 6
percent, such interest to commence six months after the inventory
was filed, January 10th, 1867."
Under this charge, the jury rendered a verdict in favor of the
plaintiff and assessed the damages at $48,000, upon which verdict
judgment was entered. An appeal was taken to the supreme court of
the territory. An appeal bond was given conditioned that the
appellants should perform the judgment of the court and pay the
damages and costs that might be adjudged against them upon their
said appeal.
There is a provision in the
Revised Statutes of New
Mexico [
Footnote 1] which
reads as follows:
"In case of appeal in civil suits, if the judgment by the
appellate court be against the appellant, it shall be rendered
against him and his securities on the appeal bond."
The 7th section of the organic act of the territory [
Footnote 2] provides:
"That the legislative power of the territory shall extend to all
rightful subjects of legislation consistent with the Constitution
of the United States and the provisions of this act. . . . All the
laws passed by the legislative assembly and governor shall be
submitted to the Congress of the United States, and
if
disapproved shall be null and of no effect."
There was no evidence that this law had ever been
disapproved.
In pursuance of it, when the judgment was affirmed by
Page 83 U. S. 539
the supreme court of the territory, judgment was rendered
against the appellants and the sureties upon the appeal bond.
The latter judgment was brought to this Court by writ of error,
the court being called upon to review as well certain errors which
were alleged to affect the action itself, as others which were
assigned upon a bill of exceptions taken at the trial of the
cause.
The errors assigned were:
1st. That judgment was entered by the supreme court against the
sureties of the appeal bond as well as against the appellants
below.
2d. That an administrator
de bonis non cannot maintain
suit on the original administrator's bond.
3d. Other objections, as that the late administrator, Beall, had
not been called to account in the probate court, and no decree had
been passed against him, and that no order of the probate court was
obtained for leave to prosecute the bond.
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The first error assigned is that judgment was entered by the
supreme court against the sureties of the appeal bond as well as
against the appellants below. This point depends on the question
whether the statute of the territory authorizing such a judgment is
a valid one or not. As the legislative power of the territory, by
the organic act, extends to all rightful subjects of legislation
consistent with the Constitution of the United States, it would
seem to extend to such a case as this. A party who enters his name
as surety on an appeal bond does it with a full knowledge of the
responsibilities incurred. In view of the law relating to the
subject, it is equivalent to a consent that judgment shall be
entered up against him if the appellant fails to sustain his
appeal. If judgment may thus be entered on a recognizance, and
against stipulators in admiralty, we see no reason in the nature of
things or in the provisions of the Constitution
Page 83 U. S. 540
why this effect should not be given to appeal bonds in other
actions if the legislature deems it expedient. No fundamental
constitutional principle is involved; no fact is to be ascertained
for the purpose of rendering the sureties liable which is not
apparent in the record itself; no object (except mere delay) can be
subserved by compelling the appellees to bring a separate action on
the appeal bond.
The next point made is a more serious one, to-wit, that an
administrator
de bonis non cannot maintain suit on the
original administrator's bond. It is true the action is brought in
the name of the Territory of New Mexico, to which the bond was
given, and is so far correct; but it is expressly brought "for the
use and benefit of William W. Griffin, administrator
de bonis
non," and the whole frame of the petition is conceived on the
theory that the duty of Beall to respond for defaults and
devastavits in administration is owed to the administrator
de
bonis non. This does not seem to be the law as understood in
England or in the states which derive their principles of
jurisprudence from England, although in some states statutes have
been passed making it the duty of an administrator who has been
displaced, or of the representatives of one who has deceased, to
account to the administrator
de bonis non. [
Footnote 3] By the English law, as
administered in the ecclesiastical courts, the administrator who is
displaced, or the representatives of a deceased administrator or
executor intestate, are required to account directly to the persons
beneficially interested in the estate, distributees, next of kin,
or creditors, and the accounting may be made or enforced in the
probate court, which is the proper court to supervise the conduct
of administrators and executors. [
Footnote 4]
Page 83 U. S. 541
To the administrator
de bonis non is committed only the
administration of the goods, chattels, and credits of the deceased
which have not been administered. He is entitled to all the goods
and personal estate which remain in specie. Money received by the
former executor or administrator, in his character as such, and
kept by itself, will be so regarded; but if mixed with the
administrator's own money it is considered as converted, or,
technically speaking, "administered." And all assets of the
testator or intestate in the hands of third persons at the death of
an administrator or executor intestate belong to the administrator
de bonis non. [
Footnote
5] Of course debts and choses in action not reduced to
possession belong to this category. In this case the claim of
Hinckley's estate against his surviving partners is of this
character. If anything can be realized therefrom by the prosecution
of those partners, it is the duty of the administrator
de bonis
non to prosecute them, as much as it was his predecessor's
duty to do so, before his discharge. But for the delinquency of the
former administrator in not prosecuting, he is responsible to the
creditors, legatees, and distributees directly, and not to the
administrator
de bonis non. This is the result of the
authorities referred to. And it follows that, as the administrator
de bonis non has no claim against the former administrator
on this ground, he cannot prosecute for it on the administration
bond. It is said in Williams on Executors (referring to 1 Haggard's
Ecclesiastical Reports 139) that
"if the original administrator be dead, and administration
de bonis non has been obtained, such administrator may sue
the executors of the deceased administrator at law on the
administration bond, in the name of the ordinary; and the court
will order the bond 'to be attended with,' in the common law court,
and produced at the hearing of the cause. [
Footnote 6]"
The authority referred to was the case of
"The Goods of
Hall," in which the first administrator died without having
distributed the assets in
Page 83 U. S. 542
his hands, and leaving a considerable balance of the estate in
the hands of his bankers. The administrator
de bonis non
having applied to the executors of the deceased administrator for
his balance, and payment being refused, he commenced the action on
the former administrator's bond, and the prerogative court
sanctioned the proceeding. But this case was undoubtedly founded on
the theory that the money in bank was a part of the original
intestate's estate in specie, and, as such, that the administrator
de bonis non was entitled to it. If specific effects of
the estate remain in the hands of a discharged administrator or
executor, or in the hands of his representatives, of course, the
administrator
de bonis non is entitled to receive them.
And if they are refused, he will be the proper person to institute
suit on the bond to recover the amount. But this is perfectly
consistent with the doctrine above expressed, that for
delinquencies and devastavits he cannot sue his predecessor or his
predecessor's representatives, either directly or on their
administration bond.
We have been unable to find anything in the local laws or
statutes of New Mexico establishing a different rule on this
subject from that which prevails in states governed by the common
law. The judgment must therefore be reversed for this ground alone,
without reference to other errors assigned.
Other objections to the validity of the action are raised -- as
that the late administrator, Beall, has not been called to account
in the probate court, and no decree has been passed against him,
and that no order of the probate court was obtained for leave to
prosecute the bond. Many authorities show that these preliminaries
are necessary to sustain the action. They will be found generally
collected in the text and notes of Williams on Executors, p. i,
book v, c. iv, pp. 444-448, 4th American edition. Chief Justice
Redfield says:
"The ordinary bond for faithful administration is not intended
to transfer the jurisdiction of questions connected with such
administration from the appropriate and exclusive
Page 83 U. S. 543
sphere of the probate courts to that of the common law courts.
But these bonds are designed to secure the enforcement of the
decrees of the probate court, after they are rendered against the
executor or administrator, whereby his breach of duty is
established in the proper forum. [
Footnote 7]"
The bond is taken by the probate court, and is subject to its
control, and the money which may be recovered thereon is ordinarily
to be paid into said court for distribution as assets of the
estate, unless recovered to satisfy a particular judgment or
decree. [
Footnote 8] These
considerations seem to demonstrate the propriety of requiring the
order of the probate court for prosecuting the bond.
Were not these considerations amply sufficient to decide the
case, we should still be of opinion that the view taken by the
court below on the trial, as to the nature and consequences of
Beall's settlement with Hinckley's surviving partners, was very
questionable, and calculated to mislead the jury. Beall's account
of this settlement, as contained in his inventory of the estate
filed soon after the testator's death, was as follows:
"The property, rights, and credits of the said deceased, so far
as the undersigned, executor, has been able to obtain a knowledge
thereof, were, at the time of his decease, as follows:"
"The firm or partnership of which he was a member with Blake and
Wardwell, at Fort Craig and other places in this territory, were
owing the said deceased the sum of $46,538.60. The undersigned,
being satisfied that the sum stated is correct, has agreed to
receive of the said Blake and Wardwell, in full discharge of the
capital and profits of the said deceased, the aforesaid sum. The
said Blake and Wardwell have agreed to pay the said sum as soon as
they can arrange their affairs to do so, and within a reasonable
time. The undersigned is satisfied that the said arrangement
Page 83 U. S. 544
is the best he could make for the interest of the estate, and
that the payment will be made in due time."
The judge on the trial seemed to treat this statement as a clear
admission of a sale; whereas in our judgment it was equally
consistent with a mere liquidation of accounts; and the witness,
Elkins, who was called to testify as to Beall's conversations, was
obliged to admit that Beall had never told him that it was a sale,
but that he, the witness, only inferred that it was such. The
testimony of this witness, and the inventory and accounts of the
executor being all the material evidence on the subject, ought to
have been left to the jury, as well as the evidence relating to the
executor's negligence.
Regarding the transaction as clearly a sale, the judge
instructed the jury that the administrator had rendered himself
liable for the whole claim by not taking security for its payment;
whereas, if it was merely a liquidation of the accounts he would
only be liable for negligence (if under the circumstances of the
case he was guilty of negligence) in enforcing the claims of the
estate against the surviving partners.
However, the errors which lie at the foundation of the action
preclude further trial, and require that the judgment should be
unconditionally
Reversed with directions to dismiss the petition.
[
Footnote 1]
Section 5, page 290.
[
Footnote 2]
Brightly's Digest, p. 694.
[
Footnote 3]
Williams on Executors 443, note (1); do., 783, note (1), 4th
American edition;
Wernick's Administrator v. McMurdo, 5
Randolph 51;
Hagthorp v. Hook, 1 Gill & Johnson 270;
Bank of Pen. v. Haldeman, 1 Penrose & Watts 161;
Kendall v. Lee, 2
id. 482;
Drenkle v.
Sharman, 9 Watts 485;
Weld v. McClure, ib., 495;
Small's Estate, 5 Barr 258;
Carter v. Trueman, 7
id. 320;
Adams v. Johnson, 7 Blackford 529; 2
Redfield's Law of Wills, 91 and note.
[
Footnote 4]
Ib.
[
Footnote 5]
1 Williams on Executors 781, 4th American edition.
[
Footnote 6]
Vol. i, p. 444, 4th American edition; p. 514, 6th English
edition.
[
Footnote 7]
2 Redfield's Law of Wills 92.
[
Footnote 8]
See 1 Williams on Executors 446, 4th American
edition.
