Elwell v. Prescott

Oole, J. This is an action for the benefit of creditors, brought by the county judge upon an administrator’s bond. The breach alleged is, that the defendant Julia L. Prescott, the principal, has neglected and refused to pay certain sums which she was ordered by the probate court to pay the creditors named in the order. A number of errors are relied upon for a reversal of the judgment, the more material of which will be noticed. On the, trial, a certified copy of the order of distribution was offered in evidence, which was objected to on the ground that the records of the prior proceedings in the probate court must be produced, to show jurisdiction in that court to make the order. The order was surely admissible in evidence, being expressly made so by the statute. Ch. 117, R. S., makes the county court a court of record with a seal, and enacts that all certified copies of the records and proceedings of that court shall be legal evidence. Secs. 2 and 3.. The order itself shows that it was made on the application of the administra-trix for a final settlement of her account; it states the liabil [278] ities of the estate, and the amount in the hands of the admin-istratrix applicable to the payment of debts; and it determines the sums which she is directed to pay each creditor named in the order. It is very clear that the order was competent evidence to show a breach of the bond; and whether it was conclusive as to the facts therein stated, we need not consider. A copy of the final order of distribution was served upon the administratrix, and a demand was made of the payment of the amounts adjudged to be paid the several creditors. It is objected, however, that no demand was made upon the surety in the bond. We have not been referred to any statute which makes such demand of the surety necessary as a condition precedent to the right to sue the bond. Ch. 104, R. S., does not require it. But it, is said that the answer denies that the person making the demand was authorized to make it, and that no proof was offered that the person making the demand was authorized, except the written demand itself. The demand was made by the attorney who appeared for the creditors in the probate court on the final accounting; and presumptively he had authority to make demand of payment on behalf of his clients. Thomas v. Steele, 22 Wis., 207. The creditors presented a petition to the county court representing that the administratrix had neglected and refused to obey the order made on the final accounting, and had neglected and refused to pay the sums decreed to them, though demanded; and asked leave to prosecute the bond. The court granted permission to bring an action in the name of the county judge for the benefit of creditors. It is objeóted that no notice was given the administratrix or the surety of this application for leave to commence the action. The statute does not make such a notice necessary. The statute provides, in substance, that on the application of any person interested in the enforcement of the order, as a creditor, etc. (to whom a right of action is given), the judge may grant permission to bring suit to recover the penalty of the bond'; and the judge [279] is required, on payment of his legal fees, to furnish to the applicant a certified copy of the bond, together with a certificate that permission has been granted to prosecute it, with the name and rssidence of the applicant. R. S., ch. 104, secs. 2, 3, 4, 7. It is manifest that, if it is made to appear satisfactorily to the county judge that the administrator neglects and refuses to obey the order for the payment of money, or the performance of any other act which he is required to do, the. judge is then authorized to grant the permission ex parte. Golder, County Judge, v. Littlejohn, 23 Wis., 252. The permission was granted in this case in the form of an order, which surely is sufficiently full and explicit. It is also objected that the specific amounts due the several creditors are not ascertained and determined by the court or otherwise. A bare reference to the order of distribution will show this objection to be unfounded. The order does designate the creditors to whom the administratrix is directed to pay, and states the precise sums which each creditor is to be paid. We do not find anything in the decision of Golder, County Judge, v. Littlejohn, 30 Wis., 344, in conflict with this view or applicable to the question we are considering. The sum allowed e'ach creditor and directed to be paid is distinctly-specified in dollar^ and cents in the order. By the Court.— The judgment of the circuit court is affirmed. Ryaít, G. J., took no part in the decision of this cause.