Judges: Shaukey
Filed Date: 1/15/1836
Status: Precedential
Modified Date: 10/19/2024
delivered the opinion of the court.
This action is founded on an executor’s bond, and recovery is resisted on the ground of the facts disclosed by the pleas. The substance of the matter pleaded is, that Enloe, for whose use the suit was brought, was at the time administrator, with the will annexed, of the goods and chattels of Philip Alston, deceased, who was surety and co-obligor in the bond, and as such, jointly liable. That while he was so acting as administrator, he became the assignee and purchaser of the whole interest of James D. Wells, the sole heir and legatee of William Wells, deceased, in the estate, and that he, James D. Wells, by said sale, transferred the estate to Enloe, by which it is averred, that Wells’s right of action was extinguished. Mildred M’Donald, formerly Mildred Wells, one of the defendants below, was the executrix, and the action Avas brought for a legacy.
For the defendants in error, it is insisted, that Enloe being the administrator on Alston’s estate, and liable to be sued as such on bond, could not make such a purchase, and recover on it; that when he purchased, it was a satisfaction of the bond on demand for the benefit of the estate, on which he was administrator, and that he could only have recourse to the other obligors for their portions in his representative character. The position is taken that Enloe was a trustee, and could not profit by purchasingliens on the estate. In support of this argument, many authorities containing the learning on that subject have been relied on, but the view that I take of the case makes them inapplicable.
The bond was made by Mildred Wells, with Henry G. Johnston and Philip Alston, as sureties, conditioned for the faithful discharge of the duties of executor, by making a true inventory, and in all things complying with the will. By the will, it seems the property was left to James D. Wells. The executrix was therefore bound to deliver the property, as the will’directed.
The rights of James D, Wells did not exist in the bond alone;
But it is said, that Enloe, as the administrator of Alston, could only resort to the other defendants, or to one of them, at least for contribution, having by his purchase, actually paid' the demand. What would be the measure of contribution? A bond of this description only gives the right to recover for the actual damage sustained, which must be proved to a jury, before a recovery can be effected. If the bond has been discharged by the act of Enloe, in purchasing the estate, and this suit cannot be sustained; of course, there can be no means by which the amount of contribution can be ascertained. Johnston would not be bound to pay him his proportion of the sum given for the legacy, because Johnston’s liability is secondary, arising only in consequence of the breach of the condition of the bond, and by taking away the action, the only mode of arriving at the extent of his liability, he ^ would, of course, be entirely released, and the whole loss would
The judgment must be reversed, cause remanded, and re-spondeat ouster awarded.