State ex rel. Pierson v. Bowden

Smith, J. This was an action of debt on the bond of an administrator against Bowden one of the sureties. The breach alleged is, that on the 27th of December, 1840, the relator obtained a judgment for 108 dollars against the intestate, who was then living; that after the death of the intestate, to-wit, on the 3d of November, 1841, the bond sued upon was made and the administrator qualified; that [505] on the 5th of November, 1842, a transcript of the judgment was filed in the Probate Court of Martin county, admitted to be correct by the administrator, and allowed by the Court for payment out of the estate; that after-wards, during the year 1844, the administrator collected the sum of 300 dollars, due the estate, and paid out the same on debts of an inferior class which should have been postponed until after payment of that of the relator; that the estate was and is insolvent; and that the relator’s judgment remains in full force and unpaid. A demurrer was sustained to the declaration, and judgment was rendered for the defendant. One of the objections made to the declaration is the want of an averment that the plaintiff had obtained a judgment against the estate of the intestate. The case of Eaton v. Benefield, 2 Blackf. 52, is cited in support of this objection, but it is not applicable. The Revised Statutes of 1843 provide that— “ After a creditor is entitled by law to the payment of his debt from the executor or administrator, out of moneys properly applicable thereto', which shall have come into the hands of such executor or administrator, and the amount of his claim has either been admitted to be just, or allowed by such executor or administrator, or has been ascertained by judgment or award, or by an order of the Probate Court for the payment thereof on distribution, the bond given by such executor or administrator may be put in suit by such creditor, if the executor or administrator, upon demand made, shall neglect or refuse to pay such claim.” Section 400, p. 561. It is averred in the declaration that the relator’s demand was admitted to be just, and also that the Probate Court had ordered its payment; and either of these acts, under the statute then in force, would have been a sufficient establishment of the claim. But it is also objected to the declaration that there is no averment of a demand of payment of the administrator, and this is a fatal defect. The statute above quoted evidently requires a special demand to be made of the [506] administrator, in cases like the present, before suit can be brought upon his bond. J. 8. Watts, for the plaintiff. G. G. Dunn, for the defendant. Per Curiam. The judgment is affirmed with costs.