Doogan v. Elliott

Day, J. 1. executor : uaMutyí6 oí' In Wright & Co. v. Harris, 31 Iowa, 272, it was by an executor upon claims filed and allowed against the estate, and that for a failure to pay the same, over to the parties entitled thereto, he and his sureties would be liable upon their bond. In that case Harris, in his official capacity as county judge, received of the executrix of an estate $217, in payment of á claim due Wright & Co. from the estate. While the money was in his hands he made a final settlement with' the administratrix, and ordered her to be discharged. Upon the expiration of his term of office he failed to pay over the money to his successor, or to account to any person therefor. He and his sureties were held liable for the amount upon the ground that it was his' official duty to receive the money. No distinction, in this respect, can be drawn between money due to a creditor and money belonging to a legatee. The reasoning of the court, in the case above cited, is as applicable to the latter case as to the former. In fact we do not understand appellee to claim that the probate judge had no authority to receive this money; but his position, we understand to be, that defendant can be discharged from liability only upon an order for payment to the probate court duly entered of record. And from the ruling of the court upon the.demurrer, and in rejecting the testimony offered, we understand this to have been its view of the law. The position assumed we believe to be erroneous. [348] 2___. verbal order, [347] Section 2419 of the Revision provides that if the executor fail to make payment of any kind in accordance with the order of the court, he and his sureties may be summoned to appear to show cause for the failure. And section 2420 pro [348] vides tliat if no sufficient cause be shown, the court shall render judgment on the bond of the executor, and shall issue execution accordingly. Now it may be that the court could, by execution, enforce obedience only to an order duly entered of record. But in Wright v. Harris, supra, it was held to be the duty of the county judge, in a proper case, to receive money from the executor. The propriety and necessity for such a course is strikingly illustrated by this case. An executor ought not to be held indefinitely liable. At some period he ought to be able to pay over the money in his hands, and to have a discharge of himself and his bondsmen. In this case a legacy was left to one whose residence was unknown. After the lapse of nearly six years from the appointment oí the executor, the residence of the legatee still remained unknown. The executor had settled the entire estate with the exception of the payment of the legacies. It seems eminently just that he should be allowed, under such circumstances, to pay the money to the county judge, an officer by his bond rendered liable for its proper disbursement. Nor should the discharge of the executor depend upon the fact of the county judge making a written order or any order for the payment. When the county judge receives money from an executor, settles with and discharges him, the judge and his bondsmen from that time become liable for the money in his hands. And from that time until the settlement and discharge are in some manner impeached and set aside, we know of no legal principle under which the executor may also be held liable to the party entitled to the money. We are satisfied that the court erred, and that the judgment must be Revebsed.