Stewart v. Moody

The opinion of the Court was delivered by Sergeant, J. —The breach assigned in the declaration is in the words of the recognizance. The condition of the recognizance is, [171] that the administrator shall truly account for, and pay over thé proceeds of sale as the court shall legally decree. The breach alleged is, not having truly accounted for and paid over the proceeds of such sale as the court would legally decree, and that the defendant had not paid to the commonwealth, for the use aforesaid, the money arising from such sale: and that plaintiff had not as yet obtained payment of said decree, which was legally payable out of the proceeds of said sale, whereby an action has accrued, &c. The breach is imperfectly assigned, it is true, but the defendant went to trial on the plea of payment, and thereby waived objections to form. The court, however, in saying that the only breach assigned was, that J. Wallace did not pay the proceeds of sale of the land as the orphan’s court would have directed, seem to have fallen into a misconstruction of the breach. The substance of the recognizance is to account for the proceeds of sale, and also to pay them over as the court should legally decree. This latter branch could only refer to any surplus that might remain for distribution after payment of debts, &c., for in that only could the court make a decree. If the meaning of it was that the administrator was not bound to pay a creditor without a decree, he would be without remedy, for the orphan’s court do not ordinarily decree payment of a debt by the administrator. There is certainly a great and censurable neglect of precision in the language of this recognizance, too prevalent in the proceedings of our orphan’s courts. But such construction must be given' to it, if the words will bear it, as is consistent with the requisitions of the law and the design of the parties. The breach, then, however informal, is, substantially, in the administrator’s not accounting for the proceeds of sale, and not paying the plaintiff’s debt. The next branch of the charge raises the question, whether the defendant, by procuring the dismissal of the administrator and the appointment of another, and the surrender to that other of all the proceeds of sale of the land, after this action brought, thereby defeats the plaintiff’s action. It cannot be denied that the plaintiff had a good cause of action at the time the suit was instituted. The defendant’s recognizance was forfeited by the administrator’s neglect to account for the proceeds of sale for more than six years, during all which time the estate was left unsettled, and for more than three years he had removed from the state, as appears by the defendant’s own petition. It was the duty of the defendant to have procured a settlement of the account, and the payment of the plaintiff’s debt by the administrator, agreeably to the terms of the recognizance. If the defendant could discharge the responsibility which had attached, by procuring the dismissal of his principal, I see no end to the proceeding, nor how a plaintiff can escape from being constantly baffled in énforcing his rights. The new administrator also gives sureties: these, on being sued for neglect of the new administrator, should the plaintiff be now turned over to him, may resort to the same expedient, and this may be done on every new occasion. The plaintiff would [172] thus be deprived of his right of action, and thrown into the costs of suit at the will and pleasure of the defendant. Perhaps the course the defendant pursued may not have been the best for him. It would have been wiser to have procured the administrator to do his duty, or else to have obtained from him the funds for the purpose of indemnity, and paid the plaintiff. It would seern the surety had the power to procure the administrator immediately to conform to the course he adopted. It may generally be presumed that a surety has sufficient influence to induce his principal to secure him, and the law gives him peculiar means for his indemnity. But be the result what it may, it was the defendant’s own act, and he must abide by it. The act of assembly gives a surety a right to procure the dismissal of the administrator, but it is for his own protection and for the security of the creditors, not for the purpose of defeating them. The surety cannot thus by his own act,, after suit brought, dfestroy a clear right of action vested in the plaintiff, by the breach of the recognizance. To sanction such a principle would tempt him to neglect his duty to the last moment, and then, when pressed by a creditor, release himself from his obligations. The act of assembly confers no such right; and it would be dangerous to permit it. An objection to the plaintiff’s right of action has been made in the argument here, which it is proper to notice. It is, that a recovery should first have been had against the administrator, in analogy to the decision in Commonwealth v. Evans, 1 Watts 437; that the nonpayment of a debt by an administrator is not such a breach of the condition of his administration bond as will enable the creditor to sue it, and recover his debt, without a previous suit fixing the administrator with a devastavit. The cases, however, are not analogous. The condition of the administration bond is, that the administrator will well and truly administer according to law, the goods, &c. of the deceased, which shall come to his hands. On this bond the surety is only liable for a devastavit, and there can be no legal evidence of a 'devastavit without a proceeding against the administrator making him responsible de bonis propriis. The liability of the surety, therefore, is contingent. In addition to which, there is the express provision of the second section of the act of the 4th of April 1797, directing in respect to the sureties in administration bonds there referred to, that there shall first be a return of nulla bona to an execution against the administrator, and notice thereof to the sureties that they may show goods and chattels, lands or tenements, in some other county, which may be taken in execution by a testatum fieri facias. See Commonwealths. Evans, 1 Watts 437; Commonwealth v. Bryan, 8 Serg. & Rawle 133. But the administrator here proceeds under a special power given by acL of assembly : he avers the existence of the debts; obtains an order to sell, and thereby receives funds to pay them ; and the condition of the recognizance is,, that he account for these funds. The recognizance is forfeited by [173] his neglecting to account for them. This objection, therefore, is not sustainable. This disposes of the first, second and fifth errors assigned. The other errors do not appear to be sustained, so far as we can judge of them at present.' Judgment reversed, and a venire facias de novo awarded.