Commonwealth v. Hilgert ( 1867 )

The opinion of the court was delivered, February 14th 1867, by

Read, J.

— Every administrator is required to give a bond with two or more sureties, the condition of which is prescribed by the 24th section of the Act of 15th March, 1832. This bond relates only to the personal estate, and does not include the proceeds of real estate, for which the sureties are not in any manner liable.

When a sale is made by an executor or administrator under the order of the Orphans’ Court, of the real estate of the decedent for the payment of debts, he must give security to be approved of by the Orphans’ Court having jurisdiction of his accounts, for the faithful application of the proceeds of such real estate, according to law.

The security given in this case was the bond of the administrator with two sureties, and upon this bond this suit is brought against the obligors, who are bound only to account for and pay over the proceeds of the real estate according to law.

“ The security exacted from the administrator,” says Judge Rogers in McCoy v. Scott, 2 Rawle 222, “ has reference to the value of the personalty, as was decided at Sunbury, when we held that the surety in an administration-bond was not liable for the real estate. When lands are wanted for the payment of debts there is a mode pointed out by the Act of Assembly, which the administrator is bound to pursue, for the real fund is not absolutely but sub modo assets in his hands.” “ The distinction,” say the court, “ between these and the real assets, is recognised even by a statute which requires a separate bond for the latter, the administration of which, to avoid the -uncertainty which springs from confusion, ought to appear also by a separate account.” Commonwealth v. Gilson, 8 Watts 214.

In order, therefore, to ascertain the liability of the sureties in the bond in suit, there should have been a separate and distinct account of the proceeds of the real estate, and of the payments and disbursements made out of it by the administrator, and the balance if any against the accountant would have been the amount of the sureties’ liability: Commonwealth v. Stub, 1 Jones 150; Boyd v. Commonwealth, 12 Casey 359. Instead of this an account is produced composed of real and personal estate, and rents and profits of real estate, not showing any specific appropriation of any part of the assets, to any particular debts. This is not such an account as the act contemplates, and the court therefore properly rejected it. Great injustice might be done to the real estate sureties, for all the real estate proceeds may have been applied to pay debts, which the personal estate should have paid if it had not been squandered by the administrators.

The statements of counsel point to such a state of things, and it would have worked great injustice if this lumped account had been laid before the jury. It is clearly not such an account as would ascertain and fix the liability of the sureties.

Judgment affirmed.