Durfee ex rel. Legal Representatives of the Estate of Rauscher v. Joslyn

Hooker, J. Defendant Joslyn was appointed administrator of the estate of Marie Rauscher, deceased, and gave an 'administration bond in the sum of $1,000. Marie Rauscher died seised of a parcel of real estate, upqn which was a mortgage. Upon foreclosure sale this property brought the sum of $683.87 in excess of the mortgage, which sum was paid over to Joslyn as administrator. Some months later he obtained from the probate court a license* to sell the land, which he did, receiving therefor the sum of $830 in excess of the amount necessary to redeem the same, which amount of $830 came to his possession, the remainder being used to redeem the premises. Before making this sale he filed the statutory bond in the amount of $2,000. Upon a final accounting in the circuit court he was found indebted to the estate to the amount of $1,648.72, which order was made August 29, 1886. Actions were brought upon the respective bonds, and a judgment rendered upon that first mentioned for $1,000, which was paid. Subsequently plaintiff obtained a judgment upon the second bond, by direction of the court, for $1,287.94, being the amount found due on the final accounting, with interest, less the $1,000 paid on the judgment on the first bond. This cause was before this Court on a former occasion, when it was held that the circuit judge was in error in his conclusion that the judgment for $1,000 upon the earlier bond was a_ bar to an action upon the later one. The case will be found reported in 92 Mich. 211. ' It was there held that— “ If the penalty of the administrator’s general bond had been large enough, the whole sum of money due the estate from Joslyn might have been recovered under it.” It was said further that— “The fact that there was no special accounting as to the fund realized from the sale of the real estate, separate [553] and apart from the general accounting, cuts no figure in the case, if the amount due from Joslyn on account of the sale of this real estate can be^ ascertained from his account, or from other evidence, such as his report of sale; and there can be no reason why this suit should not be maintainable, even if some of the money for which the signers of this bond are holden has been accounted for and included in the judgment upon the general bond. The sureties upon the bond in suit cannot complain because their liability has been lessened by such judgment. The plaintiff might have contented himself in the suit upon the first bond with a judgment for only the money in Joslyn’s hands not derived from the sale of real estate, and relied upon the bond in suit for the whole fund obtainedMfrom the sale of real estate. “The bond on sale of real estate is only an additional security for the moneys coming into an administrator’s hands, and does not supersede the general bond or affect it in any way; and the representatives of the estate are entitled to recover upon both bonds, with the only limitation that they cannot recover more in both suits than the whole amount due from the administrator, and no greater sum upon the special bond than has been realized from the sale of real estate under it. In this case it was conceded, as the circuit judge stated, that Joslyn received $830 from the sale of real estate, and plaintiff was certainly entitled to a judgment for this amount and interest. “ The counsel for plaintiff further claims that there was $683.87 additional received from the sale of real estate, for which he was also entitled to have judgment. From the record we are unable to determine whether this claim is correct or not, but upon a new trial this may be made to appear." Under the familiar rule of the Court, this must be considered as settling th« law for this case, so far as any of the questions therein disposed of arise upon this hearing. It follows that plaintiff might show that the amount found due upon the final accounting of the administrator included a sum received upon a sale of real estal$, for which recovery might be had in an action upon the second bond, and that evidence might be introduced, including [554] his account and report of sale, to show that a sum was so received; and hence that defendants* claim that the order of the circuit court upon the accounting should be “the conclusive and sole evidence of the rights of the estate against Joslyn and his co-defendants ** is untenable. Moreover, the defendants* testimony shows that Joslyn received the sums of $683.87 and $830, respectively, as hereinbefore stated, and, aSj there was no evidence to the contrary, it was proper for the court to find the fact established. The legitimate evidence in the case, being uncontradicted, justified the court in finding that defendants were liable upon the statutory bond for the amount received upon the sale of the land by the administrator; hence it becomes unnecessary to inquire whether other evidence, tending to establish plaintiff’s case, was admissible or not. At most, its admission was error without injury. ¥e think that all of the questions raised here are covered by the former decision except one, viz., the right of plaintiff to recover the whole or any part of the sum of $683.87, paid to the defendant Joslyn upon the foreclosure sale. It is contended that this amount was received before the statutory bond was given; that it was personal property in the hands of the administrator at that time, and the only interest that the estate had in the land was what should remain after payment to the purchaser at the foreclosure sale of the amount of his bid and interest. But, as the amount of $830 was received upon the 16th day of November, 1882, from the sale of the equity of redemption, the interest found due thereon by the jury and subsequently accruing justified the computation made by the circuit judge. The judgment of the circuit court will be affirmed. Mc&rath, C. J., Long and Grant, JJ., concurred. Montgomery, J., did not sit.