Olmstead v. Bailey

Hinman, C. J. This is an action on an executor’s bond to the judge of probate, and as there were three executors, who, with two sureties, joined in the execution of the bond, and as the suit is against one only of the executors, the defendant on the trial objected to the admission of the bond in evidence, for the reason that the declaration counts upon it as a several bond, without taking any notice of the other parties who executed it. We have no doubt that the Superior Court correctly overruled this objection. The bond was both joint and several, and it is very common to bring suits against one of several obligors on similar bonds to the judge of probate. The obligatory words of the bond are substantially the same in this case as in the case of Carter v. Carter, 2 Day, 442, in which it was held that the words “ we bind ourselves and each of us, our executors and administrators, and each of [587] them, ” imported an obligation imposed upon all and each of the obligors collectively and individually, and therefore was both a joint and several obligation, though the words “joint and several” were not used in it; and in Taylor v. Mygatt, 26 Conn., 184, and other cases cited by the plaintiff’s counsel, only one of the obligors appears to have been sued upon bonds given to judges of probate. But it is claimed that the bond was inadmissible, because it was not sufficiently described in the declaration; and the claim is, that, as this bond was in fact executed by five persons jointly as well as by each of them severally, when one of them is sued upon it as a several bond, the fact that it was executed by others also should be stated in order to identify the instrument in suit. The substance of the defendant’s obligation, so far as it relates to the defendant severally, is alleged according to its legal effect, and we know of no rule of pleading that requires the plaintiff in an action of debt upon a bond to state all the contents of the instrument in order to identify it. The defendant having signed the instrument, and being aware of its contents, knew of his several liabilities upon it, and was not therefore taken by surprise. And this is all that need be said as to a variance bétween the bond as declared upon, and the instrument given in evidence. So long as the defendant’s several obligation was correctly stated in the declaration there could of course be no variance between that statement and the instrument itself. But the principal question in the case is as to whether the defendant could resist the plaintiff’s claim by showing that Bussing, for whose benefit the suit was brought, was indebted to the testator in a larger sum than was allowed in his favor by the commissioners on the testator’s estate, making him a debtor instead of a creditor, and we are clearly of opinion that the Superior Court decided correctly in holding that he could not. Non-payment of a debt allowed by commissioners on an estate represented to be insolvent, is of course a breach of the bpnd, and when the report of commissioners is returned to the court of probate, the only mode of disputing the justice of the claims allowed by them is to take an [588] appeal from their finding. If the facts stated in the notice are true, they might have constituted a good defense to the small claim presented to the commissioners on the testator’s estate; and they ought to have been presented to that tribunal as an answer to any claim that the deceased was indebted to Bussing. But when the commissioners allow a claim against the estate, and report it to the court of probate as justly due, and the report remains unappealed from, it is too late to defend a suit upon the probate bond on the ground, either that it was unjustly or mistakenly allowed, or that it was paid before the report was made. Weed v. Grant, 30 Conn., 74. We therefore do not advise a new trial. In this opinion the other judges concurred.