Ward v. State ex rel. Mullins

Ellett, J., delivered the opinion of the court. An action of debt was brought in the Circuit Court of Lawrence county, in the name of the State, for the use of the distributees on an administration bond, to recover against the administrator of the administrator, and the executors of one of his sureties, the amount of money found to remain in the hands of the administrator after settlement of his final account, which was settled after his death by his administrator. The only point raised for the decision of this court is whether the bond sued on was valid. This bond was executed by Pollard Mullins (Ward’s intestate), B. R. Bridges (of whom the said L. II. Bridges and II. II. Bridges are executors), and T. J. Mullins, in the penalty of $10,000, and is dated the 17th of January, 1854. The condition is in these words: “ The condition of the above obligation is such that whereas the above bound Pollard Mullins, administrator of the estate of James Mullins, deceas'ed, hath heretofore executed a bond payable to Jackson Milsaps, judge of probate, in the sum of $1,000, and conditioned for the discharge of his duties as administrator as aforesaid, which said bond bears date the 19th day of November, 1849; and whereas, by an order of the court, made on the 20th day of July, a. d. 1853, other bond and security hath been required of said Pollard Mullins : now therefore, if the said Pollard Mullins shall well and truly have kept, and shall well and truly keep and perform the [111] conditions of the bond aforesaid, and shall in all respects have performed, and shall continue to perform the duties of his office aforesaid, then this obligation to be void, otherwise it shall remain in full force and virtue.” The declaration sets out the condition of the first bond, which was in the form prescribed by the law in force at the time of its execution. (Hutch. Code, 656, section 56.) The defendants, the executors of Bridges, the surety, pleaded “ that the bond sued upon in this cause is invalid and not binding upon them in this, to wit, that there was no petition or application by the securities upon said P. Mullins’s first bond as administrator to the Probate Court of Copiah county for relief, but that the judge of said probate court required and took said bond sued upon (if executed at all) of his own mere motion and accord.” The plaintiffs demurred to this plea, and assigned for causes of demurrer: 1. That the facts set forth in said plea, if true as pleaded, would not constitute any legal defence; and 2. That said plea amounts to the general issue of non est fact/wm,; and the demurrer was sustained. The counsel for the plaintiffs in error say, that all the assignments of error terminate in one point, and have for their object to deny the validity of the bond sued upon, and we shall therefore confine ourselves to this single point. The only ground upon which' the validity of the bond is assailed by the plea, is that there was no petition or application for relief by the sureties upon the first bond, but that the judge required and took the bond on his own mere motion and accord. There is no express averment that parties interested in the estate did not petition for a new bond, but the question may be considered as if such allegation had been made; and in that aspect it is to be determined whether the Probate Court has the right in any case to require an administrator to give a new additional bond without an application for that purpose by the sureties on his first bond, or by other persons interested in the estate ; or rather, whether a bond, given under the circumstances supposed, is void for want of power to take it, and liable to be impeached collaterally on that account. [112] The Probate Court is a court of full jurisdiction in all matters of administration, and in all cases within its jurisdiction its decrees are final and conclusive, and can only be impeached for fraud, or reversed for error. The subject-matter in this case was clearly within its jurisdiction. The Probate Coiu-t has power to take administration bonds, and to require new and additional bonds when it shall be ascertained that the original bond was, or has become, insufficient. Whether the particular facts existed to justify the exercise of that jurisdiction in this instance, was a question for the court to decide, upon the construction of the statutes, and in view of its general powers. It is not disputed that the administrator was duly summoned, and that jurisdiction over his person was properly acquired. . The decree having passed requiring him to give a new bond, he did not appeal, but submitted to the decision, and complied with it by executing the instrument now sued upon. Whether the court committed an error, in granting such a decree, could have been inquired into on an appeal to this court; but it would be a precedent of most dangerous tendency to hold that the judgment of a court of record, in a cause wherein the subject-matter and the parties were subject to its jurisdiction, could be disregarded as a nullity by reason of snch error. Put we are not by any means satisfied that there was any eiTor in the proceeding for which the order of the court could have been reversed. It was then, as it is now, the duty of the Probate Court, in granting letters of administration, to take bond in a penalty “ at least equal to the value of the estate.” (Hutch. Code, 656, section 56; Eev. Code, 438, article 63). It was also provided that if the coiu’t should grant letters “ without taking good security for the same, or if the security so taken shall afterwards become insufficient, it shall be lawful for the court, on the application of any person interested in the distribution of the estate, to require such executor or administrator to give other good and sufficient security, and in default thereof the letters of such executor or administrator shall be revoked.” (Hutch. Code, 658, section 64.) And the next [113] succeeding section. authorizes tbe sureties when they conceive themselves in danger of suffering thereby, to petition the court for relief. These provisions are substantially retained in the Rev. Code, page 439, article 66, but there was not, and is not now, any express provision in the statutes for the case of a bond taken in an insufficient amount to cover the value of the estate. Nothing is more easy than for the court to fall into an error, or to be wilfully misled, in this respect. No inventory or appraisement, and no report of assets, can be made until after the qualification of the administrator, and nothing is on file when the bond is taken to show the value of the estate. In the present case, the penalty- of the first bond was only $1,000, and after an administration running through nine years, and the payment of all debts and expenses of the settlement of the estate, there remained a balance of over $4,000 in the hands of the administrator. Is there no remedy to correct such a mistake as this? It is true that no statute specially points out the manner in which it may be done; but can the Probate Court do nothing but what is particularly set down in some statute? This would be a very erroneous view of the powers of that coxu't. Its jtmsdiction is not only full, but peculiar in its character, arising from the nature of the business that comes before it, and the mode of proceeding. The action of the court is not confined to the trial of causes brought regularly to issue, as in the circuit and chancery courts, but the judge exercises .a general supervision over the administration of estates, and is bound to see that executors and administrators perform their duty. It is expressly made his duty to require bond in a penalty at least equal to the value of the estate, and, if on the coming in of the appraisement, or by .other means, he is made aware that he has failed to do so, it would seem to be plainly incumbent upon him to cite the administrator to give a new bond in a sufficient penalty. In the case of Lehr v. Tarball, 2 How. 905, Chief-Justice Sharkey said: “ There is no doubt but the probate judge, without the ’ intervention of any party, may remove an administrator [114] .for good cause.” If tbis be so, then he may, of course, “ of his own motion and accord,” cite the administrator to appear and require of him the performance of the duty, the non-compliance with which furnishes the “ good cause ” for his removal. We do not think the judge of probate transcended his legitmate powers in requiring the administrator to give the bond now sued upon, but, on the contrary, are of opinion that he only discharged a plain duty. There is no objection to the form of the bond. As the sureties in the first bond did not petition for relief, the giving of this bond would not discharge them from their previous undertaking. The judgment of the court below will be affirmed; the judgment for damages and costs in this court to be entered only against the executors of Bridges, who alone have prosecuted this writ of error, and their sureties.