Hazen v. Durling ( 1838 )

The Chancellor.

The first and most obvious question to be settled ill this cause is, whether the administration boud was forfeited. If not, then the complainant paid the money voluntarily, and the foundation upon which he has based his suit is gone. In the case of the Archbishop of Canterbury v. Wills, 1 Salk. 316, it was held by Holt, chief justice, that the condition of this bond was answered by rendering an account, and was not intended to be a security for the payment of the debts: that a creditor had no right to prosecute this bond, and assign for breach the non-payment of a debt to him. That this should ever have been held as a compliance with the terms of the bond, is indeed strange, when the condition requires the administrator not only to account, but “ well and truly to administer” the estate according to law. Chief justice Spencer, in the case of The People v. Dunlap, 13 Johns. Rep. 440, has placed this subject, in my opinion, on the true ground. In that case there was a judgment and execution by a creditor of the intestate against the administrators, and a return, as in this case, of nulla bona, and the very point, waa raised on the authority of the case in Salk eld, that it was no part of the condition of the bond that the administrator should pay the debts; but the judge declared it was, and held it to be a good assignment of a breach in the bond. The chief justice also refers, in that opinion, to other authorities, settling the case I think clearly, and upon the only rational and sound principles. After the return of milla bona on the execution against the administrators, the bond was forfeited, and the surety had a right to pay it with or without suit. The administrators of Tillman were requested to pay it by the complainant, but declined having any thing to do with it; the surviving administrator did not do it, and the complainant went forward and paid it. The payment cannot be considered as voluntary, but compulsory, and made after a forfeiture of the bond.

I am not iguorant that the supreme court of this state have considered this subject, in the case of The Ordinary v. Robinson and others, 1 Halsted, 195, and in the case of The Ordinary v. Snook and others, 5 Halsted, 65. Those cases were designed to settle the course of practice in a suit on an administration bond. They do not deny the doctrine that a creditor may sue the bond, but decide that he cannot assign as a breach the non-payment of his debt. The breach assigned must be, that the administrator has not made a true and perfect inventory, or has not administered the estate according to law. Under this last breach, the not paying the debts of the intestate are embraced. These cases relate to the forms of proceeding in the common law courts on the administration bonds, and are not designed to vary in any way the general principles of law relating to the liabilities of parties under them. I see nothing in these cases that looks like a denial that a creditor may, in proper form, obtain his remedy on the bond, and that it is a security to him as well as to the next of kin.

In the case now before me, the suit on the bond is evidently brought under the decision in 1 Halsted. The breaches assigned are, for not filing an inventory, for not administering the estate according to law, and for not making a just and true account of the administration. The bill charges that sufficient assets came to the hands of the administrators of Durling to pay all his debts. The answer admits that he left a considerable personal estate, but professes to be ignorant of the amount. The proofs in the cause show a balance un ad ministered in the hands of the administrators of two thousand eight hundred and sixty-four dollars and forty-two cents, on the settlement of their accounts in the orphan’s court. In adjudging, therefore, this bond to have been forfeited, there is no conflict with the decisions before referred to.

The complainant is a creditor of Charity Burling and John Tillman in their own right, as having paid money for their joint account. His remedies against them should be exhausted, before this court can interfere in his behalf, to reach the assets of John Burling, the first intestate. If it had been shown that the complainant had sought in vain, by suit, to get his money from those, from whom he had a right and was bound to seek it in the first instance, I will not say a bill might not have been so framed as to follow the assets of the first intestate: but until such remedies are sought, I cannot see how relief can be asked in this case. Bo far, then, as this bill prays an account from the surviving administrator of John Burling, of the assets of that estate, the bill must be dismissed, but without costs, as she has not appeared or incurred any expenses in the case.

I have had much doubt whether the remaining branch of the bill, praying an account against the representatives of Tillman, ought to be sustained, without making Charity Burling a party in her own right, and showing that the money could not be recovered against her at law, by a return of nulla bona. I do not find any case expressly so declaring, but I do find such to be the practice. The right of coming into equity upon the plain case of a creditor against executors, though it has sometimes been done, has been questioned unless there existed some special circumstances calling for the interference of the court. The right has been sanctioned upon the plea of discovering assets, and lord Hardwicke, in 2 Aik. 363, said that he would not, where the parties were thus before him, turn them round to a court of law, for the sake of the expense. Chancellor Kent has sanctioned the general doctrine in a very able opinion, in the case of Thompson v. Brown, 4 John. Ch. Rep. 625. That was the case of a creditor of a firm, (a simple contract creditor,) and the bill was filed against the surviving partner, against whom they had exhausted their remedies at law by a return of nulla bona, and against the representatives of the deceased partner. The bill was sustained, and there was a decree against the representatives of the deceased partner. But there were in the case some peculiar circumstancés which called for the aid of the court.

Tt would have been more proper to have made Charity Durling a party in her own right, after exhausting the remedy at law ; but it is charged in the bill, and sustained by the evidence, that she was insolvent; and under such circumstances, and especially in favor of a surety, I have come to the conclusion that the bill should be sustained so far as it prays an account against the administrators of Tillman.

This account, upon well-settled authority, cannot be taken for the benefit of the complainant alone, but must be for the benefit of all such creditors as may choose to come in before the master. A decree of this court is a judgment from its date in favor of all the creditors, and they are entitled to be paid rateably unless they have some legal priority. For the rule on this subject^ I refer to the case in 4 Johns. Ch. Rep. 625.

I shall order a reference to a master, to ascertain the amount due the complainant for monies paid by him on the aforesaid administration bond, and the amount due to all other the creditors of J. Tillman, deceased, who shall come in and contribute to the expenses of this suit; and that the master report the nature of such claims, whether by judgnjent, mortgage or otherwise; and that the master give reasonable notice, in his discretion, for all such creditors to come in by a certain day. Also, that he take an account of the personal estate of the intestate which hath come to the hands of the said administrators, what is the situation of said administration, and whether they have fully administered or not. All other and further directions are reserved.

Order accordingly.