Bales v. State ex rel. Pennington

Hanna, J. Bales, as the surety of one Weathered, was sued on the bond executed by them for the discharge, by the latter, of his duty as administrator of the estate of one Mallet. It is averred that Weathered failed to discharge his duty in this, that he had, when the bond was executed, $94 in good solvent notes, belonging to said estate, which he converted to his own use, and then left the State, &c. The defendant answered: 1. A denial. 2. That in October, 1855, said Weathered was appointed said administra^ tor, and gave bond, with one Jerry Smith as surety; and [322] afterward so administered the estate, that on February 18, 1858, he had collected all the moneys belonging to the same, and then had in his hands, not paid out, thereof, the sum of $94; that on the 19th of said month, said Weathered was, on motion of his surety, Smith, required to give an additional bond, &c., and thereupon the bond upon which this suit is founded was executed; that after the execution thereof no money or other property came to the hands of said Weathered to be administered, nor was there then in his hands any uncollected claims due said estate; but that said $94 was then in his hands, and he and his surety, Smith, were liable therefor on their bond, &c. Reply: 1. Denial. 2. That at the time of the execution of said last bond, Weathered had in his hands, in choses in action and money due said estate, the sum of $96, that sum being reported by him as in his hands; that defendant executed said bond with a full knowledge, &c., and thereby became liable, and said Smith was thereby discharged from liability. There was a demurrer to this second paragraph of the reply overruled; which ruling presents the first question in the case. The ruling upon the demurrer was correct. The obligation rested upon the administrator to reduce and properly dispose of the assets. If, as averred in the answer, he had reduced to money, and to his possession, all such assets, still the duty remained to apply the same as the law directed. The fear that he would not so apply the same may have influenced the first security in seeking a discharge. The administrator may have discharged his whole duty up to that time, and yet may have afterward violated that duty in failing to pay out, or distribute, the funds so received. The second surety would be liable for failures of duty after he was appointed, if not before, a question not presented; whether the same resulted from a failure to collect and reduce the assets, or to pay over, or properly account for the same after they should be so collected. The above observations dispose of the first point presented upon the evidence, which is, as to the sufficiency thereof. [323] Upon that point the evidence was the report made by the administrator on the day before the execution of the bond, which showed that he had in his hands “ ninety-four dollars balance unaccounted for, most of it uncollected.” O. O. Nave and J. Witherow, for appellant. J. M. Gregg, for appellee. The next question arises upon.the ruling of the Court in excluding evidence, namely: the admissions, or declarations, of the administrator, made a few days before the report was filed by him, to the purport that he had collected all the money due the said estate, and could not pay it over because he had used it. It is insisted that the evidence should have been received as going to establish a defalcation, a breach of duty, before the execution of the last bond, and for which suit should have been brought upon the first bond. Even if the conclusion is correct, yet to establish facts leading to that conclusion, it appears to us the testimony offered could not be admitted. That evidence, if it was worth any thing, would have had a tendency to defeat the whole action as to both the principal and surety upon that bond. The surety could not, for that reason, have offered his co-defendant as a witness to the point indicated ; and, therefore, he could not give his declarations in evidence, as to matters concerning which he would thus be incompetent. King et al. v. The State ex rel., at this term. Per Ouriam. The judgment is affirmed, with 5 per cent, damages and costs.