Newton v. Cox

Henry, J. This was a proceeding in the probate court of Daviess county on a sci. fa. against the sureties oí James L. Davis, executor of the last will of Charles B. Williams, deceased. The sureties pleaded to the jurisdiction of the court, upon the ground that the bond is not a statutory bond, and, therefore, summary proceedings by sci. fa. would not lie. The judgment of the court was against them, and they appealed to the circuit court, where plaintiffs again obtained a judgment, from which defendants have appealed to this court. It is conceded, and there can be no question, that if the bond in suit is a statutory bond, the court had jurisdiction. E. S., §§ 235, 236, 252. But two questions are presented by this record for consideration, both arising on the plea to the jurisdiction : 1st, Is the bond a statutory bond ? 2nd, Was it necessary to allege in the sci. fa. that demand was made upon the executor to satisfy judgment before the issuance of the execution against him ? The condition of the bond prescribed by the statute is that the executor shall: “ Faithfully administer said estate, account for, pay and deliver all money and property of said estate, and perform all other things touching said administration required by law, or the order or decree of any court having jurisdiction.” The condition of the bond pursued the statute, except that the words, “ or the order or decree of any court having jurisdiction,” are omitted, and the words, “ touching such executorship,” are substituted for the word's, “ touching said administration.” In the State to the use of Cameron v. Berry, 12 Mo. 377, it was held that: “ Where the bond merely fell short of the statutory enumeration, in such a manner as to be more favorable to the party executing it, he could not be permitted to complain if, after it had auswered all his purposes, he was held liable to its penalties.” In Hoshaw v. [354] Gullett, 53 Mo. 208, a forthcoming bond in an attachment suit, executed by defendant and his sureties, but not in exact, though substantial conformity, with the requirement of the statute, was held a good statutory bond. See also Flint v. Young, 70 Mo. 222. The bond in question embraces the obligation imposed by the omitted words. It obligates the executor to perform all things required by law touching his executorship; and the valid order or j udgment of a court having j urisdietion requiring him to pay a sum of money, or perform some other act, as executor, is a judicial ascertainment of his official duty in that respect. So that whether sections 18 and 19 of the administration act are applicable to an executor or not, the point in question must be' ruled against the appellants. As to the other question, the 235th section, Revised Statutes, provides that “ if any executor or administrator fail to pay any claim * * when demanded, the clerk of the court on application of such creditor, and being satisfied that such demand has been made, shall issue execution,” etc., against the executor or administrator. The sci. fa. here alleges the issuance of an execution and the proper time to raise the question of demand was on motion by the executor to'quash the execution. "We are of the opinion that it cannot be raised in this proceeding. We do not decide, however, that even a motion to quash the execution could be sustained on that ground, but leave that question as we find it. All concurring, the judgment is affirmed.