Williams v. Esty

Rice, J. — These actions are against sureties on an administration bond, and both depend upon the same state of facts. The principal has not been sued. The defendants have submitted to a default. The only question to be determined is the amount for which execution shall be awarded. It is agreed that the administrator, who is the principal in the bond, has been duly cited to settle his account of administration, but has wholly neglected to do so. The plaintiff now claims execution according to the provisions of the 16th section of chapter 113, R. S., which is as follows: — “ Whenever in any such suit, against any administrator, it shall appear that he has neglected or refused to account upon oath, for such property of his intestate, as he has received, after he has been cited by the Judge of Probate for that purpose, execution shall be awarded against him, for the full value of whatever personal property of the deceased has come to his hands, without any discount, abatement or allowance for charges of administration or debts paid.” It is contended by the defendants that this section is penal in its character and applies to the administrator, in person, only, and does not affect the sureties in any way, whatever. By the third section of chapter 106, every administrator, before entering upon the execution of his trust, is required to give a bond, with good and sufficient sureties, resident within this State, in such sum as the Judge of Probate shall order, payable to said Judge or his successor, conditioned among other things, to administer according to law, all the goods, chattels, rights and credits of the deceased; and to render upon oath, a true account of his administration, within one [247] year, and at any other times when required by the Judge of Probate. The undertaking of the sureties is, that their principal shall comply with the conditions in his bond. For any failure on his part they are equally liable to parties interested with the principal. Chapter 113 is an Act in terms “respecting probate bonds, and remedies on the same.” It contemplates (§ 8) cases in which sureties may be sued on such bonds, when the principal is not made a party, and provides for bringing in the principal by them, as a party. There is no provision in the chapter, by which sureties are, in terms, exempted from liability where the conditions of the bond have been, broken. To hold that they were not liable under the 16th section, would be to offer a premium for extreme negligence or excessive and wholesale waste on the part of administrators. Under such a construction all that an administrator would find it necessary to do, to discharge his sureties from liability on his bond, would be wholly to neglect his duty, and set the authority of the Judge of Probate at defiance, by refusing to render any account of his administration. Such a construction is wholly inadmissible. The administrator has, under oath, .returned an inventory of the personal estate of the intestate. This is prima facie evidence of the amount of personal property which has come into his hands; Weeks v. Gibbs, 9 Mass. 74; and this devolves on him the .necessity of discharging himself from the items which the inventory contains. 2 Greenl. Ev. § 347. This has not been done, and to the extent of that inventory of personal estate, ($3718,97,) execution will be awarded in both cases, the amount, however, can be collected but once. Shepley, C. J., and Tenney, Appleton and Cutting, J. J., concurred.