Boudinot v. Locust , 55 Okla. 662 ( 1915 )

To obtain a reversal of this case counsel for plaintiff's in error submit the following propositions:

First. "Neither the administrator nor his bondsmen are liable for funds coming into his hands, except in his representative capacity."

Second. "The United States Court had no jurisdiction originally to appoint an administrator of the estate of James Locust."

Third. "There was no law requiring or permitting the giving of the additional bond made by the Southern Surety Company."

In support of the first contention counsel insists that probate or county courts of Oklahoma are invested only with jurisdiction to compel administrators to account for all the money and assets which belonged to the decedent at the time of his death, and which came into their hands as such administrators; the true test being whether the administrator was entitled to receive the money or property in his capacity as administrator, they insisting that if he is not so entitled, the court has no jurisdiction to require him to account for such funds or property, and any order made so requiring him to account is absolutely void, and his bondsmen cannot be held liable on his bond for such items.

This contention, as a general proposition, might be conceded; but in this case counsel argue from a false position. In the first place, the bond of the Southern Surety Company was given for the express purpose of including this particular fund, and the bond recites the fact that it was given under a special order of the court, "owing to an increase in the income derived from said estate in the nature of royalties from an oil and gas mining lease on certain lands belonging to said estate." By virtue of this bond the administrator was enabled to get possession of the funds in controversy, and by giving the bond the surety company became a party, or at least assisted the administrator to get possession of the funds. Besides, it must be borne in mind that the liability of the administrator has been fixed by the solemn judgment of the court having exclusive jurisdiction of the matter. In that case the judgment roll, which was introduced in evidence herein, recites in substance that on the 16th day of March, 1908, Frank J. Boudinot, as administrator of the estate of James Locust, deceased, petitioned the county court of Cherokee county for an order authorizing him as such administrator to receive the funds involved herein; that upon consideration thereof the court ordered the Indian agent to turn said funds over to said administrator upon his giving an additional bond in the sum of $4,000; that said bond was given as required, which bond is the bond executed by the Southern Surety Company herein, dated March 19, 1908, that said administrator received said funds, amounting to the sum of $4,161.81; and the court further finds, upon final report of the administrator, that there still remains in his hands, of said funds, the sum of $2,886.05, and judgment was rendered thereon according to said findings as follows:

"That said Frank J. Boudinot, and the sureties upon his bond, as administrator of said estate, were obligated to said heirs in the amounts set forth, and adjudged and decreed that said administrator pay off and discharge said obligations."

As stated before herein, this judgment is final. Section 6190, Rev. Laws 1910, referring to the jurisdiction of the county court, provides:

"The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts."

The judgment, being final, is conclusive in this action, not only as to the administrator, as principal, but also as to the sureties on his bond. The current of authorities is almost unbroken that final settlements of the administration; when made by an executor or administrator in pursuance of statutory requirements, are conclusive as to all matters therein directly adjudicated. In Greer et al. v. McNeal et al.,11 Okla. 526, 69 P. 893, quoting from the first two paragraphs of the syllabus, we find the following:

"The sureties on an administrator's bond are bound to the extent to which their principal is bound.

"The sureties upon an administrator's bond are, in the absence of fraud, concluded by the decree of the probate court, duly rendered upon a final settlement and accounting by their principal, as to the amount of the principal's liability, although the sureties on the bond are not parties to the accounting."

And in the body of the opinion Judge Hainer refers to, and quotes with approval, numerous authorities on the same subject as follows:

"Judge Woerner, in his late work on the American Law of Administration, section 255, states the general rule as follows: 'The liability of a surety on an administrator's bond is coextensive with the liability of the principal in the bond. The refusal or neglect of the principal to obey or comply with the judgment or decree of a court of competent jurisdiction constitutes a breach, rendering the sureties liable, and they are bound and concluded by such judgment against the principal, unless, of course, there was collusion or fraud between the principal and those who seek satisfaction out of the sureties, which must be established in a direct proceeding.'

"In Stovall v. Banks, 10 Wall. 583 [19 L.Ed. 1036], the Supreme Court of the United States, in passing upon this question, said: 'Sureties in a bond are bound to the full extent to which their principal is bound. A surety cannot attack collaterally a decree made against an administrator, for whose fidelity to his trust he has bound himself.' Mr. Justice Strong, in the course of the opinion, used the following language: 'It has been argued on behalf of the defendants in error that the decree of the superior court, if admitted, would have been only prima facie evidence against the sureties in the bond. Were that conceded, it would not justify the exclusion of the evidence. But the concession cannot be made. The decree settled that the administrator of the intestate, Alfred Eubanks, held in his hands sums of money belonging to the equitable plaintiffs in this suit, as distributees of the intestate's estate, which he had been ordered to pay over by a court of competent jurisdiction, and the record established his failure to obey the order. Thereby a breach of his administration bond was conclusively shown. Certainly the administrator was concluded. And the sureties in the bond are bound to the full extent to which their principal is bound.'

"In Scofield v. Ckurchill et al., 72 N.Y. 565, it was held that, in the absence of fraud or collusion between the executor and legatee, the decree of the surrogate was conclusive upon the sureties. Mr. Justice Miller in the course of the opinion said: 'It cannot be denied that a breach of this condition has occurred within the letter of the bond, and the positive undertaking of the sureties has become fixed and operative by the surrogate's decree. In the absence of fraud or collusion between the executor and the legatee, the decree of the surrogate is conclusive upon the sureties. It binds the principal and the sureties alike, and cannot be impeached in a collateral proceeding. While the most solemn judgments do not conclude those who are neither parties nor privies, yet, when an obligee undertakes the payment of a judgment which may be recovered against his principal, he cannot escape the effect of such judgment when recovered. He has bound himself to pay, and is indebted for the amount of the judgment when recovered, without regard to its legal merits. Such is the nature of his contract, and he must abide and stand by it, irrespective of the consequences. He cannot go behind it, or allege that it was erroneous and embraced more than was intended. The decree is final as to the indebtedness of the estate, and the obligation of the executor to pay, and the sureties cannot go back of such judgment. Thayer v. Clark, 4 Abb. Dec. [N.Y.] 391; Id. [N.Y.] 48 Barb. 243; People v. Downing, 4 Sandf. [N.Y.] 189;Baggott v. Boulger. 2 Duer [N.Y.] 179.'

"In Deobold v. Oppermann, 111 N.Y. 684, 19 N.E. 94, the New York Court of Appeals said: 'The sureties were bound by the surrogate's decree reversing the order of discharge, though not parties thereto, in the absence of collusion between the administratrix and the distributees or creditors of the estate.'

"In Kenck v. Parchen [22 Mont. 519] 57 P. 94 [74 Am. St. Rep. 6251, the Supreme Court of Montana, in passing upon this subject, said: 'A judgment against an administrator in a probate proceeding determining the amount of his indebtedness to the estate is conclusive as against the sureties, and cannot be inquired into collaterally.' And inBotkin v. Kleinschmidt [21 Mont. 1] 52 P. 563 [69 Am. St. Rep. 641], the same court declared that: "The sureties on a guardian's bond are bound by a judgment against their principal determining the amount of his indebtedness to the estate, though not parties to such suit,' and, 'a claim that too much interest was included in a judgment ascertaining the amount of a guardian's indebtedness cannot be inquired into in an action on his bond.'

"In Thompson v. Dekum [32 Or. 506] 52 P. 517, the Supreme Court of Oregon thus states the rule: 'A judgment against the executor on the final settlement is conclusive on his sureties, in the absence of fraud or collusion.'

"In Meyer v. Barth [97 Wis. 352] 72 N.W. 748 [65 Am. St. Rep. 124], the Supreme Court of Wisconsin, in a recent case, has decided that: 'Sureties upon a probate bond are, in the absence of fraud, concluded by the decree of the proper court, rendered upon an accounting by their principal, as to the amount of the principal's liability, even though the sureties be not parties to the accounting.'

"The Supreme Court of Illinois, in Nevitt v.Wood-burn (160 III. 203], 43 N.E. 385 [52 Am. St. Rep. 315], states the rule as follows: 'In the absence of fraud or collusion, sureties on administration bonds are bound by adjudications against their principal as to his account with the estate, though not parties thereto.'

"It must therefore follow that the judgment of the probate court that Pentecost was indebted to the estate in the sum of $2,403.33 on July 27, 1897, was final and conclusive, and could not be collaterally attacked by the sureties in an action upon the administrator's bond which is the subject of this controversy."

One of the latest opinions on this subject was by our court, in which one of the plaintiffs in error was a party,Southern Surety Company v. Burney, 34 Okla. 552,126 P. 748, 43 L. R. A. (N. S.) 308, in which it is said:

"Sureties on a guardian's bond are, in the absence of fraud, concluded by the decree of the county court, duly entered on a hearing on an accounting or final settlement, as to the amount of the principal's liability, although the sureties are not parties to the accounting."

A very clear statement of the proposition is found inIrwin, Administrator, v. Backus et al., 25 Cal. 214, 85 Am. Dec. 125, as follows:

"In an action against the sureties on an administrator's bond for a breach of the bond by the principal, the proceedings taken in the probate court in passing on an account rendered by the administrator, and a decree rendered therein directing the administrator to pay over a sum found remaining in his hands, are admissible in evidence against the sureties, although the sureties were not parties to the same."

"Such decree is equally conclusive upon the administrator and his sureties; and upon the refusal of the administrator to obey the same, liability of the sureties attaches, and they cannot go behind the decree to inquire into the merits of the matter therein passed on."

The next contention of counsel is that the United States Court had no jurisdiction to appoint such administrator. We cannot agree with counsel in this contention. The administrator made a written application to the court as such for an order directing the Indian agent to turn the funds over to him as such administrator. He entered into a bond as such. He received the funds as administrator, and now, when it comes to requiring him to account for these funds, he should not be permitted to deny that he was such administrator. Nor, will he be permitted to deny that there was any legal authority or law permitting or requiring him to give the additional bond. He gave the bond and received the money on the strength of it. He will not be permitted to deny his authority at this late date under these circumstances.

The case should be affirmed in all particulars.

By the Court: It is so ordered.

On motion for leave to file second petition for rehearing. Motion denied.