Nutting v. Boardman

Lochrane, Chief Justice. The complainants brought their bill to recover back railroad stock alleged to have been illegally sold by the administrator of an estate which they claimed as heirs, etc., to the defendants. The answers contained by way of cross-bill, a prayer that the securities of the administrator bo made parties. A demurrer was filed to this portion of the answers, which the Court sustained, and dismissed the cross-bills. We affirm, the judgment of the Court below in this case. We recognize the rule of law binding the administrator and his securities to respond for any devastavit of the assets of the estate in his hands for administration, and that such suit may be maintained, either by the heirs or by creditors of the estate. But when a suit is instituted or a bill filed to recover back property sold illegally by the administrator, out of the hands of those who purchased or possessed the same, we see no reason why the securities on his bond are either proper or necessary parties to such a suit or proceeding. The present case proceeds upon the theory that the purchasers got no title to the thing sold, and if they, the purchasers, got no title to the thing bought, then the securities could in no way be liable if it was recovered back from the purchasers who bought it; for the securities would not be legally liable to them for their loss. The case treats the act of the administrator as an individual act, and his securities would not be liable for that, except it could be shown that the proceeds went into the estate, and by such substitution it was assets in his hands for administration, which he had wasted. Judgment affirmed.