Stronach v. Stronach , 20 Wis. 129 ( 1865 )

Downer, J.

Is this action rightly brought by tbe respondents as heirs of James Stronach, deceased? Tbe complaint alleges, in substance, a devastavit on tbe part of tbe administra-trator, and that Sexton was a party thereto, knowing, at tbe time be received tbe property bom tbe administrator, tbat tbe latter made tbe transfer fraudulently, or in violation of bis duties as administrator. Generally speaking, whenever an administrator sells, mortgages or pledges any of tbe personal property of which tbe intestate died seized or possessed, in payment of or as security for bis own individual debt, be is guilty of a breach of trust; and every person who receives any part of tbe personal assets in payment of or as security for bis private debt, is a party to sucb breach of trust, and is responsible therefor. Story’s Eq., § 581; Colt v. Larkin, 9 Cow., 320, and cases there cited. To whom is be responsible ? Tbe administrator cannot avoid bis own sale or pledge, though be was guilty of a breach of trust in making it. If be dies or is removed, and an administrator de bonis non is appointed, tbe latter cannot avoid tbe wrongful sale or pledge by tbe first administrator. Serron v. Marshall, 5 Humph., 443; Coleman v. McMurdo, 5 Rand., 51; Johnston et al. v. Lewis, Rice Eq., 40; Young v. Kimball, 8 Blackf., 167; Slaughter v. Froman, 5 Monroe, 19; 3 Mon., 95; Hagthorp v. Neale, 7 G. & J., 13. This is the rule except where there are statutory provisions in force authorizing the administrator cle bonis non to do what otherwise the creditors, legatees or distributees alone could do. We have examined our statutes on this subject, and find no provision authorizing an administrator de bonis non to do anything except to administer on the estate or assets remaining undisposed of by the first administrator. The remedy is not, therefore, as was suggested on the argument, to remove the administrator and appoint another. That may be necessary, but not for the purpose of reaching assets wrongfully transferred or disposed of by the present administrator. Creditors, legatees and dis-tributees are the persons who have a right to bring suit in such case. See authorities above cited.

As there are no creditors or legatees, the suit was rightly brought by the heirs. They have a right to some relief; whether to the full extent demanded by the complaint, it is unnecessary now for us to decide. This disposes of all the causes of demurrer except the second, and that, we are of opinion, is not well taken.

There was something said in the argument about the widow of James Stronach being a necessary party. I suppose she is one of the distributees of the estate, and if so, she ought to be a party.

By the Court. — The order of the circuit court is affirmed, with costs.