Rader v. Yeargin

Eolkes, J. Pryor L. Parks died in 1866, and immediately thereon his two brothers, Perry IT. and ~W. D. Parks, qualified as administrators. They filed an inventory in the County Court, from which it appears that, among other assets of their intestate, there were two notes, one made by said Perry IT. for $2,700 and one by said W. D. Parks for $1,070.50, due and payable to their brother, the intestate. In July, 1869, more than two years and six months after their appointment, they made a settlement with the County Court, charging themselves with assets $5,836.49, and crediting themselves with $2,895.36, showing a balance due by them to the estate of $2,941.13. They then resigned. In March, 1872, the original bill is filed in this cause by Jacob Rader as administrator de bonis non of Pryor L. Parks and as husband of a sister of said Pryor L., and by another sister, Mrs. McEarlaud, and her husband, against "W. D. Parks, and James A. Yeargin as surety on the administration bond of said ~W. D. and Perry II. Parks, the latter of whom had died without issue, leaving a widow- but with no administration yet taken on his estate.- The other, surety on the administration bond was not sued, as he was dead and his estate insolvent. There were several matters set up in the bill upon which relief was sought, but none of which are material to be noticed here, as the case is — 488 — before us only on the appeal of Defendant Year-gin from so much of the final decree as holds him liable as surety on said administration bond for the sum of $494.03, which is the amount found due from Perry H. to the estate of Pryor L. Parks, after crediting him with his distributive share in his brother’s estate and after crediting him with pro rata realized from his own estate, which by proper pleadings were brought into the original cause and administered as an insolvent estate. To the report of the Master fixing the $494.03 as the proper balance duo from the administrators of Pryor L. Parks, the appellant, Yeargin, filed his exceptions, in which he says, after referring to said two notes as properly embraced in the inventory: “It is shown on final settlement in the County Court that all the assets have been administered according to law except said notes; and it is shown in this cause that all the property, both real and personal, belonging to the estate of both Perry II. and W. D. Parks have been exhausted in payment of the debts of said Perry II. and W. D., and, this being true, as appears of record, defendant insists that, because of his suretyship, ho is not in any .manner liable for said indebtedness. See transcript oí County Court record in this cause.” This exception is not good upon its face. An exception to a report of the Master, like a special demurrer, must point out certainly and specifically — 489 — the objection relied on; it must be positive, explicit, and certain, leaving nothing to supposition or inference. Ridley v. Ridley, 1 Cold., 332; Mangrove v. Lusk, 2 Tenn. Ch. R., 576; Green v. Lanier, 5 Heis., 670. Everything stated in this exception may be true, and yet the defendant, Yeargin, be liable as surety. It by no means follows that because the estate of Perry H. Parks is settled as an insolvent estate, paying only sixty-seven cents on the dollar, in a litigation begun in 1872, more than five years after the date when he was appointed administrator of his brother’s estate, the money could not have been made out of him during his life. This exception is merely a repetition of the defense made in the answer, where he says: “But in going upon the bond of the administrator he did not thereby become surety on said notes”— a proposition which we suppose no one will gainsay. The record discloses the fact that Perry II. Parks was solvent and able to pay the debt due by him to bis brother. Indeed, the answer of Yeargin admits as much, notwithstanding he seeks to combat it later. It says, referring to P. II. Parks: “His residence was in Davidson County at the time of his death, and he owned a good estate, consisting of real and personal property in said county.” It is insisted that he thought his share in his brother’s estate would pay the debt, and for this — 490 — reason Iris surety should not be held liable. By the exercise of ordinary diligence he could have easily ascertained the fact, and so have settled the matter. Not only did he fail to do this, but in his settlement with the County 'Court he retained for his services as administrator the sum of five hundred dollars, leaving his debt to his intestate unpaid, thus appropriating to his own use a sum larger than the amount now charged to his surety. The degree of diligence required of an administrator who is a debtor to the estate, in the payment of the debt, at the suit of those 'who are entitled to the fund, is the same that is imposed upon him in collecting a debt from a third party. Spurlock v. Earles, 8 Bax., 437. And the liability of the surety on his official bond is the same as where the debt was due by a stranger. The criterion of the administrator’s liability 'is that degree of diligence which would be expected of a reasonably prudent and diligent man in the management of his own affairs. Where good faith is shown, our courts do not hold him to the utmost degree of diligence. Mickle v. Brown, 4 Bax., 468; in matter of M. E. Cator, executor, 14 Lea, 408. Under the most liberal application of the rule the surety in this case is liable. Let the decree be affirmed and the report confirmed, with costs.