Davis v. State ex rel. Kingsbury , 118 Miss. 577 ( 1918 )

Stevens, J.,

delivered the opinion of the court.

This is a suit in equity on the bond of one F. M. Dick, administrator of the estate of Luther J. Hopkins, deceased. The bill of complaint was filed by the appellees, brother and sisters of Luther J. Hopkins, and the distributees of bis estate. There was due aud proper administration of the estate. Money and accounts were collected and reported by the administrator, debts against the estate were duly probated, all property was disposed of, and the administrator filed and had the court approve his final account. Two of the appellees probated accounts against the estate for certain moneys due them, and in the decree approving the final account the administrator was directed to pay the probated claims of appellees, as also to pay all probated accounts therein specifically listed and after doing so to distribute all balance of the estate to the distributees in the proportion of one-third thereof to each. The administrator, however, failed or refused to pay appellees the probated accounts, and failed to distribute the residue of the estate to them as beneficiaries, and after the lapse of more than a year from the time of the rendition of the final decree appellees instituted this suit against E. S. Davis and Theodore Bechtel, appellants herein, as the two sureties on the administrator’s bond. F. M. Dick, the administrator, was not made a party defendant, the bill charging among other things:

“Said administrator has misappropriated said fund and has left the state,” and that “your complainants have made frequent efforts to ascertain the whereabouts of said F. M. Dick, administrator, but have been unable to find him or to ascertain his present place of residence or post office address.”

Appellants, as defendants in the court below, interposed a demurrer to the bill, assigning as one ground of demurrer that the administrator was not made a party defendant. This demurrer was overruled, and thereafter an answer was filed, and in the answer defendants again complained of the failure of the complainants to join the administrator as an alleged necessary party defendant. The objection was overruled, and final decree was rendered in favor of the distributees against the two sureties, and from this final decree appellants prosecute this appeal. As stated by counsel for appellants:

‘ ‘ The propriety of this action of the court is the only question involved in this appeal.”

Counsel, however, furthermore submit the proposition that:

“An administrator cle bonis non should have been appointed, and have brought the suit against the sureties and the former administrator.”

No authority is cited by counsel, and we know of no decision of our court, holding that, after the final account of the administrator has been filed and allowed, and the distribution ordered, the distributees cannot maintain suit on the administrator’s bond for a failure or refusal to comply with the terms of the court’s decree. Counsel cite sections 2031 and 2032, Code of 1906 (sections 1696 and 1697, Hemingway’s Code), on the point that an administrator de bonis non was the proper party to bring this suit. We do not so read these statutes. The essential provision of these statutes appeared as sections 1997 and 1998, Code of 1880, and as appearing in the Code of 1880 was construed by our court in Weir v. Monahan, 67 Miss. 434, 7 So. 295. It is there pointed out by Judge Cooper that the administrator de bonis non may sue on the bond of any former administrator or executor where the estate is insolvent, “or where such suit and recovery may be necessary for the payment of the debts of such estate.” It is really unnecessary to decide that an administrator de bonis non could not have been appointed for the purpose of instituting this suit in the interests of the creditors, but as stated by our court:

“He might not recover for distribution only. In such eases the right of action was not given to him, and, as before, remained in the distributees.”

The record shows that the estate had been fully administered upon. Nothing remained to be done except the paying over of moneys in accordance with the specific directions of the final decree. The administrator had failed to comply with these directions of the court, -and, being in default, his bond was properly put in suit. We see no good reason why the distributees should not file and prosecute this suit for themselves. There was no need of the appointment of an administrator de bonis non for the purpose of taking charge of any specific property belonging to the estate, and to require such an appointment would be equivalent to saying that the distributees needed an agent or attorney in fact to prosecute their suit for them, and would simply add to the cost of the administration. The rights of the parties have been fixed by decree of the court, and appellees, as chief beneficiaries, had the right to prompt compliance with this decree, and, upon default upon the part of the administrator, to look to the very instrument given for their protection.

There is no objection to the prosecution of this suit against the two sureties alone. On this record the administrator has not only defaulted, but has absconded. Personal process cannot be served upon him. But, aside from any question of expediency, section 2683, Code of 1906 (section 2170, Hemingway’s Code), expressly authorizes the filing of this action against one or more of the sureties. The right of the sureties to subrogation is not involved in this proceeding.

Affirmed.