State ex rel. Love v. Dilley

Miller, J.,

delivered the opinion of the Court.

This suit was brought on the 2d of June, 1884, by a distributee of Joseph Dilley, deceased, upon the bond of Barney Dilley, as administrator of that estate. The declaration was filed on the 22nd of August, 1884, and assigns four breaches. To this declaration there was a general demurrer, which the Court below sustained, and hence this appeal hy the plaintiff in the action.

The bond bears date the 29th of March, 1819, and it also appears from the third breach assigned, that the plaintiff and her husband, on or about the 15th of June, 1880, filed a bill in equity in the Circuit Court for Allegany County, against the administrator and others, and thereby prayed that said Barney should be required to account for all the money and other property received by him as such administrator, and that such proceedings were had upon that bill that the equity Court decided and decreed that it would assume jurisdiction over the settlement of said personal estate, and refer the proceedings therein to the auditor of that Court to state an account between the said Barney as administrator and the said personal estate. After the equity Court had thus assumed jurisdiction, it became the duty of the administrator to account-in that Court and in no other tribunal. If he has so accounted, he has discharged his duty in that respect “according to law,” and the only obligation resting upon him is to pay the amount which that Court has ascertained and determined he is liable for to the several parties who are by the decision of that Court entitled to receive it. Not only, however, does the declaration fail to aver that this amount has been finally determined by the equity Court, but the records of this Court in that case show that this matter is still unsettled, and that the question as to the amount for which the administrator is liable to the several distributees is still undetermined. Upon this state of facts, it is obvious that no substantial recovery can at present be had in an action at law on this bond. When the equity case is finally decided, and the amount of liability thereby ascertained, an action on the bond will undoubtedly lie if the administrator shall fail to pay over the same as the equity Court shall direct. In that event the obligation of the sureties can easily be enforced in an action at law and a substantial recovery had against them.

All this was conceded in argument by counsel on both sides; but counsel for the appellant, while abandoning the third and fourth breaches, insists that the first and second are good, and that under them a recovery for nominal damages can be now had; and he insists upon a reversal of the judgment sustaining the demurrer. His-avowed purpose in asking for this reversal is, that when the equity case is decided, he may proceed in the action at law by amending his declaration so as to assign new breaches to meet the decision in the equity case. In other words, all that he seeks to accomplish is to keep this suit on the bond alive until the equity case shall be settled, so that the plaintiff may not then be put to the trouble and delay of commencing a new action. But it is plain that the first and second breaches are good only in case there was a default by the administrator in not settling his accounts in the Orphans’ Court according to the strict requirements of the testamentary law, before the bill in equity was filed. And in view of what is averred in the third and admitted in the fourth, we are of opinion it should have been distinctly and explicitly averred both in the first and sécond breaches, that such default occurred before that time. Neither of them contains any such averment. The plaintiff herself instituted the equity case, and was perfectly acquainted with all the proceedings therein, and if, when she brought this action at law, she intended to rely upon these breaches as the basis of a nominal recovery (and she can only rely on them for that purpose,) it was incumbent upon her to deal fairly with the Court, and make the averments necessary to sustain them. As we have said, she avers in the third breach that she filed her bill on the 15th of June, 1880, only about fifteen months after the bond was executed. And in the fourth breach, as we read it, she admits that the administrator had during that time, settled three accounts in the Orphans’ Court. In deciding a question like the one now before us, presented as it is under peculiar circumstances, and relied on for a peculiar purpose, the Court is justified in looking at the whole declaration and every averment and admission contained in any part of it, and is not bound to consider each breach by itself. Taking this view of the case we are clearly of opinion that- the first and second breaches cannot be sustained for the purpose for which they are relied on, and that no requirement of substantial justice demands a reversal of this judgment, and we accordingly affirm it.

(Decided 20th November, 1885.)

Judgment affirmed.