Hartzell v. Commonwealth ex rel. Heller

The opinion of the court was delivered, April 21st 1862, by Read, J. It is not denied that the sureties in an administration bond given by an administrator de bonis non, with the will annexed in proper form, are answerable for the proceeds of real estate sold by him, by virtue of an authority to sell, contained in the will of the testator. In the case before us, the condition plainly designates the character of the plaintiff, and the nature of his duty, describing him as John Hartzell, administrator de bonis non, with the will annexed, of all and singular the unadministered goods,- chattels, and credits of John Hartzell, Sr., late of Plainfield township, deceased. The condition proceeds to point out this duty, which if performed, the condition is not broken. To “ make or cause to be made a true and perfect inventory of all and singular the unadministered goods, chattels, and credits of the said deceased, which have come or shall come to the hands, possession, or knowledge of him the said John Hartzell, or into the hands and possession of any other person or persons for him,” and exhibit the same to the register; and all such “goods, chattels, and credits, and all other the goods, chattels, and credits of the said deceased at the time of his death, which at any time after shall come to the hands and possession of the said John Hartzell, or into the hands and possession of any person or persons for him, to well and truly administer according to law.” Then follows the stipulation for the exhibition of an account, and the balance thereof after the allowance of the account by the Orphans’ Court, the said Hartzell is to “ pay to such person or persons as the said Orphans’ Court by their decree or sentence pursuant to law shall limit and appoint.” This is clearly and distinctly a bond of an administrator de [460] bonis non, with the will annexed, and the language of the condition strictly conforms to it; nor is there one word in it which looks to the Orphans’ Court decreeing contrary to, or in anyway conflicting with the provisions of the will, of which the sureties are bound to take notice. They knew they were becoming the sureties of an administrator de bonis non cum testamento annexe of John Hartzell. Now this bond is in substantial conformity with the bonds in Commonwealth v. Forney, 3 W. & S. 353, and Zeigler v. Sprenkle, 7 Id. 175, cases decided on the acts in existence prior to that of 1832, with the exception of a few words at the close of the condition, which really mean no more than is included in the expression “ pursuant to law.” The 24th section of the Act of 15th of March 1832, prescribes the form of an administration, with a proviso “ that in every case of special administration the form of the foregoing condition shall be modified so as to suit the circumstances of each case.” By the 15th section of the same act, where an executor is not an inhabitant of the state, the register is obliged, before issuing letters testamentary, to take a bond from him with two sureties. The closing part of the condition of which does not mention or refer to the will, but simply requires that he shall well and truly comply with the laws of this Commonwealth relating to collateral inheritances, “ and in all other respects with the laws of this Commonwealth relating to his duty as executorthe revisers in their remarks on this section saying, “ every useful purpose may, perhaps, be secured, by .placing them, in respect of security, on the footing of administrators.” By the 67th section of the Act of 24th February 1834, relating to executors and administrators, “ all and singular the provisions of this act relative to the powers, duties, and liabilities of executors, are hereby extended to administrators with a will annexed.” The revisers, after speaking of the 15th section of their bill, the 14th in the present act, relating to surviving executors, make this remark: “ The case of administrators with the will annexed, is provided for in section sixty-seven of the bill, by a general clause, extending to them not only these, but all the provisions of the bill relative to the powers, authorities, and duties of executors.” The form, therefore, of the bond, in the present case, is quite as extensive and appropriate as that specifically prescribed for an executor, which nowhere mentions the will except where it states the character of the principal obligor in the commencement of the condition. This bond is therefore clearly sufficient, and the condition has been broken not only by the failure of John Hartzell to exhibit his account, and to well and truly administer according to laAV the unadministered goods, chattels, and credits of the deceased, but also in not paying over the balance decreed [461] by the Orphans’ Court to his successor, Jacob S. Heller, in the administration of the estate agreeably to the express terms of the decree. The final decree of the Orphans’ Court, reaffirmed on a petition for a review presented by the sureties, and unappealed from, cannot be examined in this collateral way. It affirmed the propriety of the sale, and charged the administrator with the proceeds, and this is conclusive upon him and also upon his sureties. Even if it were not so, the sale comes clearly, under all the circumstances, within the ruling of this court in Brown and Sterrett’s Appeal, 3 Casey 62. Judgment affirmed.