McNabb v. Wixom , 7 Nev. 163 ( 1871 )

By the Court,

Garber, J. :

This is an action on the official bond of the defendant Wixom, as public administrator; the other defendants are the sureties on the bond. The condition of the bond is that: “ Said Wixom shall well, truly and faithfully perform all and singular the duties, of every nature whatsoever, appertaining to said office, required of him to he done and performed by the laws now in' force, or that may be enacted by the legislature of the state of Nevada, subsequent to the execution of, this bond.” ' The breaches assigned in the complaint are that Wixom violated his trust; first, in refusing to account for his administration, until one year after the time required by law; and, second, in refusing to pay over and deliver to the plaintiff the residue of the estate, as required by the decree of distribution set forth in the complaint. The defendants filed an answer, and the plaintiff moved the court to strike out the answer, and for judgment according to the prayer of the complaint. The motion was denied, and the plaintiff declining to offer any testimony, judgment on the pleadings was rendered in favor of the defendants. It is contended for the appellant, that the answer fails to deny the material allegations of the complaint, and that the only question to be determined is, whether the plaintiff is entitled to judgment upon such admitted allegations. In his argument in favor of an affirmative answer to this question, counsel assumes as matter of fact, that the complaint shows that Wixom was appointed administrator of the estate of Robert McNabb, deceased, on the fourteenth day of March, 1868, and received letters on the sixteenth day of March, 1868: that he refused to file his account, until he was finally compelled to do so, on the fourteenth of June, 1870, by compulsory citation; that from March 16th, 1869, to October 1st, 1869, the plaintiff often demanded of him to file his account; that according to his final account, rendered June 14th, 1870, he had in his hands, belonging to the estate, the sum of $1,965 ; of which sum, the two principal items were two certificates of deposit of money in the First National Bank of Nevada, one for $175 currency, and the other for $1,400 gold coin; and that these certificates were by him presented to said bank, and said deposit caused by him to be placed to his credit as administrator ; and that afterwards, in October, 1869, the bank failed and the deposits were lost.

As matter of law, counsel argues: “ That the statute requires accounting and settlement of the estate on the expiration of one year from the time of the appointment of the administrator. Section 280, Probate Act. And upon the final accounting, the estate must be distributed. Section 260. Then it was the duty of Wixom to file his final account on tho seventeenth of March, 1869. He was required by statute and the demands of the heir, to account, settle and distribute the estate in March, 1869. The bank failed seven months after that time. Had he performed his plain duty, the funds would not have been lost.” It would seem then, that the right of (he plaintiff to recover, on the pleadings, the whole amount in dispute, is rested solely on the first breach assigned.

We quite agree that an administrator is bound to the exercise of care and diligence, such as prudent and judicious men ordinarily bestow upon their own important affairs; that it is his duty to settle and distribute the estate with as little delay as practicable; and that whenever he does what the law prohibits, or fails to exercise reasonable care and diligence in the endeavor to do what the law enjoins, he and his sureties are liable for the damage consequent upon such act or omission. So long, then, as it continued to be the duty of Wixom, as administrator, to retain this money in his custody, he had the right to deposit it for safe keeping in a bank of good standing and credit. This is exactly what prudent and judicious men ordinarily do with such of their own funds as the exigendies of their business require them to keep on hand.

But when the administrator allows the money, so deposited, to remain in the bank after the time when, if he had fulfilled his duty, it would have been distributed and in the hands of those entitled to it,, an entirely different case is presented. In such case, the neglect of his duty is a breach of the condition of the bond ; and if the money is lost by reason of such neglect,’the sum lost constitutes the measure of damage. Upon this principle, it is held that a sheriff, failing to pay over money collected on execution, until after the time it was his duty to pay it over, cannot devolve upon the party entitled any loss which results from the depreciation of the money which, when collected, was current and of specie value. Wallace v. Graham, 13 Rich. (Law) 322. So, an action lies against an attorney, for not obtaining judgment as soon as he ought, upon the allegation, inter alia, that the defendant could and might, in case he had prosecuted the action with due diligence and dispatch, have obtained judgment at a certain term. 2 Chitty Pl. 374.

But we think it cannot be affirmed, as a proposition of lav necessarily resulting from the untraversed allegations of this complaint, that it was the duty of Wixom to file his final account on the seventeenth of March, 1869, and to have completed the distribution of the estate prior to the failure of the bank, in October, 1869. Probate Act, Secs. 249, 250..

Possibly, notwithstanding the lapse of a year since his appointment, and the sufficiency of the funds in his hands, for the payment of debts, the estate was not in a proper condition to be closed. For instance, the title to the assets may have been involved in litigation. But, by no admitted allegation of 'the complaint is it directly averred that Wixom had in his hands funds sufficient for the payment of all debts on the seventeenth of March, 1869, or that he had such funds in time to enable him to procure and comply with a decree of distribution before the failure of the bank. The averment that he filed an inventory showing that the money came into his hands, is by no means equivalent to an averment that he then had the money. The inventory is not conclusive, either for or against the defendants, but is open to denial or explanation. Hoover v. Miller, 6 Jones’ Law, (N. C.) 80; Cameron v. Cameron, 15 Wis. 1; Willoughby v. McCluer, 2 Wend. 608. The decree of settlement does not even purport to decide what period intervened between the receipt of the money by Wixom and the failure of the bank; and it does not appear that, in the proceedings for distribution, the time of the receipt of the money was in issue. King v. Chase, 15 N. H. 9.

The uncontroverted allegations are, therefore, insufficient to warrant a judgment on the pleadings for the amount deposited in the bank, so far as the recovery depends upon the first breach assigned. Letters v. Cady, 10 Cal. 533; Green v. Palmer, 15 Cal.; Russell v. Mann, 22 Cal. 132; Racouillat v. Rene, 32 Cal. 455; Meriden, etc. v. Whedon, 31 Conn. 118; Ralston v. Strong, 1 Chip. (Vt.) 293. The facts alleged, so far as they are not denied, are at most but prima facie evidence that Wixom failed to perform his duty, and that in consequence the loss occurred.

We have no doubt, however, that for the second breach assigned, the plaintiff was entitled to a judgment against all the defendants for the whole amount ordered to be distributed, (whatever that may be) if the sureties are bound by the operation and effect of the decree of distribution, or for the amount admitted by the answer to have been in the hands of the administrator subject to distribution, if the sureties are not so bound. We are speaking, of course, of the judgment to which the plaintiff was entitled on the pleadings, not of that to which he may entitle himself by the proofs.

The decrees of settlement and distribution are binding upon Wixom. Whether, as against the sureties, they are conclusive, or even prima fade evidence of anything more than the fact of their rendition, is a question which has not been argued, and which for that reason and because of its importance we do not now decide. Besides, on the decision of this may possibly depend the materiality of other questions, namely: Does the decree confirming the final account adjudicate that Wixom was, or that he was not, guilty of a devastavit to the .amount of the sums deposited ? Or, does it fail to decide the point ? And is the hearing of a petition praying for an order of distribution the proper time and place to determine whether anything which ought to be accounted for by the administrator has been omitted, especially where an account has been settled since the alleged devastavit occurred ?

The condition of the bond in suit, it will be observed, differs from that in use in most, if not all, of the states where it is held that the sureties of an administrator are bound by such decrees rendered in the probate court. These decisions seem to turn mainly on the terms and construction of the condition of the bond. See Lipscomb v. Postell, 38 Miss. (9 George) 476; Ordinary v. Condy, 2 Hill, (S. C.) 313; Tracy v. Groodivin, 5 Allen, (Mass.) 409; Lane v. Gilmore, 51 Maine, 544; State v. Jennings, 14 Ohio St. 75; Irwin v. Backus, 25 Cal. 222; Pico v. Webster, 14 Cal. 202; 2 American Leading Cases, 440 et seq. The same may be said of the cases which hold that in an action on the bond, the court will not go into the accounts of the administrator, nor give damages for the non-payment or non-delivery of a distributive share, until a decree in probate has ascertained and adjudged the precise amount of the shares, and ordered its payment or delivery to the proper persons. Archbishop, etc., v. Tappen, 8 B. & C. 151; Ordinary v. Mortimer, 4 Rich. (Law) 271; Chairman v. Moore, 2 Murphy, 22; Chairman v. Hicks, 1 Murphy, 437; Blakeman v. Sherwood, 32 Conn. 328; Moore v. Holmes, 32 Conn. 560; Hurlburt v. Wheeler, 40 N. H. 73; Wiley v. Johnsey, 6 Rich. (Law) 358; Ordinary v. Hunt, 1 McM. (S. C.) 382; Jones v. Irvine, 23 Miss. 361; Burrus v. Thomas, 13 Smedes & M. 464.

On the other hand, strong arguments from convenience and the purview of our probate act commend the adoption of the rule prevailing in those states in which the decrees bind the sureties equally with the principal. The answer does not, by failing to deny the demand and refusal, admit the conversion alleged. Colton v. Sharpstein, 14 Wis. 232; Hill v. Covell, 1 Comstock, 524. The judgment is reversed and the cause remanded.