Henderson v. Levy

Warner, Chief Justice. This was an action brought by the plaintiff against the principal and securities on an administrator’s bond to recover a debt alleged to be due the plaintiff by the intestate in his lifetime. The plaintiff alleged, as a breach of the bond, the failure of the administrator to make annual returns of his acts and doings as required by law, and to account to the ordinary for the money received by him as administrator; his failure to pay the debts of deceased, as required by law, and among them the debt due the plaintiff for $1,628 91 besides interest, assets sufficient to pay said debt having come into his hands to be administered, and notice of the debt having been given him within twelve months from his qualification; his failure to call to account Frederick Lamback, as survivor of the firm of Lamback & Cooper, of which his intestate was a partner, and to settle up the affairs of said firm ; the receipt by him as administrator, of the proceeds arising from the sale of real and personal property of his intestate, and failure to pay out tiie same, according to law, to the creditors of his intestate. Hendersoii, one of the defendants, filed a special demurrer to the plaintiff’s action, and for cause of demurrer alleged that he was only security on the administrator’s bond, that the plaintiff liad not reduced his debt to judgment against the administrator, as he was bound to do before he had any right of action upon said bond against his securities. The court overruled the demurrer, and the defendant excepted. There can be no doubt, that under the law, as decided [38] by this court, prior to the adoption of the Code and the legislative enactments embodied therein, a shit could not be maintained on an administrator’s bond against him and his ■securities until a judgment had first been obtained against the administrator, establishing a devastavit: Ray, administrator, vs. The Justices of the Inferior Court of Macon county, 6 Georgia Reports, 303. The question made by the record before us is, how far and to what extent has the law, as heretofore adjudicated by this court, been altered and changed by the Code and the legislative enactments embodied therein, in'relation to suits on administrators’ bonds? The latter part of section 2507 of the Code declares: “No prior judgment establishing the liability of the administrator for a devastavit by. him shall be necessary before suit against the sureties on the bond.” Whether this refers exclusively to such suits on the bond when the administrator is beyond the jurisdiction of the court, or is dead, and his estate unrepresented, or is in such a position that an attachment might be issued against him, may be admitted to be a doubtful question. All that can be claimed under this section, in any view of it as to the alteration of the old law, is that no prior judgment establishing the liability of the administrator for a devastavit shall be necessary before suit' against the sureties on the bond. The 3384th section of the Code alters and changes the old law so as to allow a distributee or legatee to sue the administrator and his securities on his bond in the first instance. The 3385th section alters and changes the old law so as to allow a ward to institute his suit against his guardian, who refuses to settle, on his bond, in the first instance, without first suing the guardian. The 3386th section alters and changes the old law so as to allow any party in interest, or any person having demands against an executor, administrator or guardian, when such executor, administrator or guardian shall remove from this state, or place himself in such a situation as by the provisions of the Code an attachment would lie against a debtor, or if such executor, administrator or guardian is dead, and his estate unrepresented, then suit may be instituted on the bond [39] against the sureties, or any one of them, in the first instance, without first obtaining judgment against such executor, administrator or guardian in his representative character. The words “in the first instance,” as used in these sections of the Code, are significant words as to the intention of the legislature. The plaintiff does not sue as a legatee, distributee or ward, but as a creditor who has claims to have a debt due to him by the intestate in his lifetime, and he does not allege in his declaration that the administrator is out of the state, or in such situation as would authorize an attachment, or that he is dead, and his estate unrepresented, therefore he is not within any of the provisions of the Code which takes his case out of the old law, even if there was no other provision of the Code applicable to it. But there is another section of the Code applicable to his case. The 3383 section declares, that upon the rendition of a judgment in favor of a party against an executor or administrator upon any liability of the deceased, and a return of nulla bona by the sheriff or other officer authorized to make the same, the said party may at once proceed to sue upon the bond of the executor or administrator, and may recover judgment against the principal and his sureties in the sáme action, and if the principal has removed beyond the limits of this state, or has departed this life, and has no legal representative, then he may sue the sureties on his bond. It follows, therefore, in view of the old law, and the several provisions of the Code before cited, that the plaintiff as a creditor of the intestate cannot institute his suit for the collection of his debt, in the first instance, on the administrator’s bond against him and his securities, but should have first instituted his suit for the collection of his debt against the administrator, obtained judgment therefor, had an execution issued thereon, and if the return of nulla bona was made on it by the sheriff, then he could have .instituted suit on his bond. The case of Morgan vs. West, 43 Georgia Reports, 272, cited on the argument, was an action brought by minor wards on the administrator’s bond, and not by a creditor of the intestate, as [40] in this case. In our judgment, the court erred in not sustaining the defendant’s demurrer to the plaintiff’s declaration. Let the judgment of the court below be reversed.