Bourne v. Todd ( 1874 )

Virgin, J.

Debt on an administration bond executed by Abby M. Todd, as principal, and by the other defendants, as sureties.

The plaintiff in interest makes out a prima facie case by the production of a judgment in his favor against the said Abby M. Todd, as administratrix, together with the execution and officer’s return thereon. R. S., c. 72, §§ 9 and 12 ; Thurlough v. Kendall, 62 Maine, 166.

In defence, the sureties offer to prove that on February 16, 1870, the said administratrix was again married, whereupon, by the express provisions of ~R. S., c. 64, § 22, her official authority was “thereby extinguishedand that the action on which the judgment produced was recovered was not commenced until January 3, 1872 — nearly two years after she had ceased to be administratrix. The evidence offered is to be considered as true. If admissible against the seasonable objection of the plaintiff, and the fact thereby proved will' constitute a sufficient defence, then, by the terms of the report, “the plaintiff is to become nonsuit.”

Before a creditor of an estate can maintain an action under R. S., c. 72, § 9, for the recovery of his claim, he “must first have its amount ascertained by judgment of law against the administrator.” § 12. Such a judgment, recovered without fraud or collusion, is conclusive upon the sureties in the administration bond, in respect to all matters of defence affecting the “amount due” on the claim. Heard v. Lodge, 20 Pick., 53. The effect of such judgment upon the sureties would seem to be based upon the ground that their stipulations in the bond, taken in connection with the provisions of §§ 9 and 12, render them, responsible that their principal will pay — “or show personal estate of the deceased for that purpose”— any creditor’s debt against the estate on demand, after the “amount due has been ascertained by a judgment against him in his official capacity.” Neither a judgment against the intestate, nor any other evidence of indebtment of the estate will suffice, for there may be nothing due on them. A judgment of law “against the administrator” is the only statute mode of ascertaining the amount due from the estate ; and when that fact has been judicially determined “against the administrator,” the sureties are estopped to controvert it, being privies in contract to that determination. Therefore a judgment against one not the administrator, but who had long before its recovery ceased to be such, can have no such effect. So long as their principal continues in his official capacity, the sureties are bound to respond for such of his official derelictions as come within the true interpretation of their obligation ; but when his “authority” is “extinguished,” his power to bind his sureties is thereby extinguished also.

If the principal defendant had been removed by a decree of the judge of probate instead of by marriage, would this judgment conclude the sureties from showing the facts, and thus prove that the judgment was not “against the administrator,” and hence not such as is recognized by the statute ? If it would, how long after such removal can creditors of an estate continue to thus conclusively fix the liability of sureties, who cannot plead such matter in defence to such actions, not being parties thereto and having no notice of the pendency thereof, and who have not stipulated that their principal should appear and plead to suits brought against her in her representative capacity years after it had become extinguished.

In Massachusetts before the separation, it was held in an action on an administrator’s bond that “if an administrator suffers judgment to be recovered against him in an action barred by the statutes limiting suits against executors and administrators, his sureties in his bond are not bound by such judgment, but they may have’ the benefit of the statute in an action against them on the bond.” Dawes v. Shed, 15 Mass., 6. This decision has never been questioned by the court who made it, that we are aware of, but on the other hand it was cited with special approbation in Heard v. Lodge, 20 Pick., 53; and, in support of the principle that an administrator cannot waive the special limitation bar, in Wells v. Child, 12 Allen, 336. Although the action forming the basis of the judgment before us was not commenced within the special limitation period, still that question, not being within the terms of the report, is not before us; and we have no occasion to express any opinion in relation to these decisions so far as they bear upon. the limitation question. But if Dawes v. Shed, and Heard v. Lodge, are sound as to the effect of the judgment upon the sureties, they must be deemed authorities having some bearing upon this case.

The question of the admissibility of the evidence offered is not affected by any pleadings in the case; so if admissible under any appropriate pleadings we must give judgment to the defendants. And we are of the opinion that it is admissible. For if to the plea of general performance, the plaintiff had replied, substantially, the recovery of the judgment, demand, refusal and return of nulla bona, and the defendants had rejoined the extinguishment of the administratrix’ authority, we think the rejoinder would constitute a good answer to the replication so far as the sureties are concerned, and the evidence offered admissible and would sustain it. If sustained, then the effect of the judgment as evidence of the breach of the bond would be annulled, and this action would fail.

As the action is brought under the provisions of § 9, the other breaches suggested in the plaintiff’s brief need not be considered.

Plaintiff nonsuit.

Appleton, C. J., Walton, Dickerson, Barrows and Peters, JJ., concurred.