Lancaster v. Lewis, Leonard & Co.

Simmons, Justice. 1. The administrator of McCormick filed his equitable petition against Lewis, Leonard & Co. et al., for direction, to marshal - assets, etc.. The facts, so far as material, will be found in the official report. It appears that the estate was insolvent, and that a large number of suits had been brought against the administrator, to all of which he had a common defence of plene administravit prceter. There was also an applicatiqn for a homestead in the land of the intestate, and there wTere other complications which it is unnecessary to mention here. These complications do not appear to have been brought about by any fault on the part of the administrator, although several years had elapsed since he was appointed. He petitioned by the present suit that all the pending suits against him might be consolidated and tried together, and that the assets be marshalled and a proper distribution of the same decreed according to the legal priorities existing among the' various creditors. In our opinion, the court erred in dismissing the petition for want of equity. The facts recited show a sufficient [731] equity to have authorized the court to retain the petition and grant the relief prayed for therein. 2. McCormick and L. B. Wilcox were joint administrators on the estate of M. D. Wilcox. McCormick died leaving L. B. Wilcox surviving administrator. The petition alleges that when McCormick died L. B. Wilcox was perfectly solvent, that the assets of M. D. Wicox’s estate had been converted into money, and L. B. Wilcox had in his possession $3,470.99 thereof, and that if there had been any mismanagement or devastavit of the estate of M. D. Wilcox, it was after the death of McCormick, and McCormick’s estate was not responsible therefor. Where two administrators unite in giving a joint bond for the proper administration of the estate, each is surety for the other (Code, §2510), and where one of them dies, this suretyship continues in force as to subsequent acts of the survivor. We are aware that some courts have held that where one administrator dies, his estate is not responsible after his death for the acts of a coadministrator; but we think the better opinion is, that the bond remains as a subsisting security for the performance of duty by the other, unless proper steps are taken to have it made inoperative as to future defaults. To this effect see 7 Am. & Eng. Enc. of Law, pp. 216, 217; Schouler on Executors, §145, and cases cited; Stephens v. Taylor, 62 Ala. 269; Dobyns v. McGovern, 15 Mo. 662. Judgment reversed.