Bird v. Mitchell

Atkinson, J. The official report states the facts. 1. To the proposition announced in the first headnote, it is. [53] only necessary to cite the opinion of this court rendered, in the case of Gibson v. Robinson, 90 Ga. 756, and cases there cited, hearing upon and controlling the question then and now under consideration. 2. It will be seen from the record in this case, that this was a suit instituted against the sureties upon the official bond of the administrator. They pleaded that, notwithstanding the rendition of a judgment against their principal, they were discharged for the reason that he had in fact fully paid off and discharged all liability by him to the distributee bringing the suit, before the rendition of the judgment. The pleas of payment, as they are stated in the record, are in proper form and good in substance. They state the time and place of payment of the several sums alleged to have been paid by their principal to the plaintiff, with reasonable certainty ; and we confess that we are at a loss to understand from the record upon what theory they were stricken on demurrer by the trial judge. In such a suit it is entirely competent for the sureties to plead in their defense and prove any fact which would tend to negative the liability of their principal, such as payment, set-off, and the like, and as well any fact which would serve directly to discharge them from liability 1:; Under this view of the law, we think the court erred in striking the pleas which appear in the record. 3. We do not think the court erred in refusing to allow the sureties to plead and prove, upon the trial in the superior court, that their principal, in his capacity as administrator, had rendered to the estate represented by him certain extraordinary services for which he was entitled to extra compensation, and set up such allowance by way of set-off against the • plaintiff’s demand. Civil Code, § 3489, provides, “ In other cases of extraordinary services, extra compensation may be allowed by the ordinary. But in no case is the allowance of extra compensation by the ordinary conclusive upon the parties in interest.” The ordinary’s court is the forum in .which, according to the law, this question as to an administrator’s right to extra compensation must be raised. It is one of the matters which rests in the wise discretion of the ordinary, and until he has passed upon the question, no other court has jurisdiction to take it [54] under review. In order for these sureties to have availed themselves of any advantage which they might have derived from this claim of extra compensation, the principal should first have applied to the ordinary for its allowance, and if allowed by him, it might then have been deducted from the assets of the estate in the hands of the administrator, thus indirectly reducing the amount to which the plaintiff, who sued as a distributee, would have been otherwise entitled to recover. In the absence, however, of any application to the ordinary for the allowance of such extra compensation, we are clear that neither the sureties nor their principal could, when sued upon the official bond, plead the value of any services rendered by the administrator as a set-off, before the claim had been liquidated by the judgment of the ordinary making the allowance. The court did not err in refusing to permit the defendants to introduce evidence in support of that branch of the defense. 4. Sureties upon the bond of an administrator are liable only for acts of nonfeasance or misfeasance upon the part of the administrator in respect of his official acts. If he fairly and honestly administer the estate committed to his care, and pay to the distributee his proportionate share of that estate, then, in so far as the distributee is concerned, he and his sureties are discharged from all obligations upon his official bond. It appears from the evidence in this case, that at a sale held by the principal of the sureties now sued, the plaintiff became a purchaser of a portion of the property of the estate, and received from the administrator a deed thereto ; that she subsequently procured the administrator as her agent to make a sale of the property so purchased by her to a third person, who executed drafts for the purchase-money, which were drawn in favor of the plaintiff. The plaintiff in turn endorsed them to the administrator, in his personal capacity, for collection. He collected the money ; and it is claimed by the plaintiff that he failed to account to her for the proceeds of the drafts. When she became the purchaser of the property at the administrator’s sale and took a deed from him, the purchase-price being charged against her interest in the estate being administered, the administrator in his official capacity, as to such distributee, to the extent of the [55] value of such property, discharged the trust imposed upon him. The mere breach of the private duty to account for the proceeds of such drafts obviously could impose no liability upon him in his official capacity ; and if he were not liable for this breach of duty in his official capacity as administrator, the sureties upon his official bond can not be held liable for his misfeasance in that behalf. It follows, therefore, that the court erred in. overruling the defendants’ motion for a new trial; and the judgment is accordingly Reversed. All the Justices concurring.