Commonwealth v. McGovern

Opinion by

Wickham, J.,

F. P. Cooper, as administrator of the estate of A. C. Brainerd, deceased, on or about January 17,1885, obtained an order from the orphans’ court of Bradford county, authorizing him to sell his intestate’s real estate, for the payment of debts. At the time of the issuance of the order, he filed a bond, which was duly approved by the court. It contained the following condition: “The said F. P. Cooper shall well and truly execute the powers committed to him, hy the said court, for the sale of the said premises, and mate a faithful appropriation of the proceeds of said sale, according to law, and his respective duties.” On this bond the appellants are sureties.

The administrator made the sale as directed, and on January 2, 1886, filed his account showing a balance of proceeds, amounting to $1,242.83 in his hands for distribution. The account was confirmed and the court appointed an auditor to make distribution of the balance shown thereby. A. C. Brainerd left to survive'him a wife, Jane, who as his widow, was entitled to interest, during her life, on $338.28 of the fund for distribution, The auditor, therefore, after. directing payment of the rest of the fund presently, recommended that the above sum should “ be retained by the administrator, during the lifetime of the widow, Jane Brainerd, and then at her death to he paid to the persons entitled ” and that the widow should be paid interest annually on the same during her lifetime. This recommendation, the defendants allege, was pursuant to an agreement made between the widow and the administrator. The auditor’s report was confirmed on December 13,1886. The widow died in 1892.

After her decease, another auditor was appointed to ascertain the parties entitled, under the first auditor’s report to the $388.28, and report distribution. He performed these duties and his report was confirmed on March 6, 1893, and among the distributees therein named are S. M. Brainerd, Cynthia Allen and C. M. Hall. The two parties last named, and the administratrix of S. M. Brainerd, he having since died, are the use plaintiffs in this action. The administrator, before suit brought, became and remained hopelessly insolvent. The above facts sufficiently appear from the statement of claim, the original and supplemental affidavits of the defense, and the records referred to in these several papers. •

The defendants allege and contend that, on the confirmation of the first audit, Cooper ceased to hold the $338.28 as administrator; that he must, thereafter be regarded as occupying a new relation towards the fund, and that, therefore, they were discharged as sureties. But, was Cooper, so far as the parties entitled to the fund at the widow’s death are concerned, ever divested of his original character? Certainly the literal language of the auditor in regard to this matter, and which practically, constitutes the order of the court, does not sustain the defendants’ contention. The money was to be retained by the administrator as such, until it was paid out to the persons entitled.

Nor is there anything in the nature of the transaction which would change his relation to the fund and the heirs. The private arrangement, between himself and the widow, to pay her interest on the funds, and the order of the court ratifying and confirming the same, does not in any way affect the rights of the heirs. The order did not change or enhance the duty he owed to them from the beginning. So far as they are concerned it was such an order as he and his sureties might have anticipated as the result of the coming into his hands of the proceeds of the sale. They are presumed to have known that the court might direct, that the total proceeds of sale should be paid in cash to the administrator. The law does not require the share of the purchase money, on which the widow is to receive interest, to remain charged on the land sold: Zook’s Appeal, 54 Pa. 486. By the terms of the bond, the administrator was “ to make a faithful appropriation of the proceeds of said sale according to law and his respective duties.” The money retained could not be paid out until the widow’s death, and then only to the very parties whom the second auditor found to be the persons entitled as heirs of the owner of the land. The only part of the order that concerns the sureties is the requirement to pay $338.28 at the widow’s death. This duty, however, the law imposed on the administrator from the beginning. Looking merely at the rights of the heirs, the decrees confirming the auditor’s reports were simply declaratory and enforcive of the administrator’s original undertakings, and therefore not subjecting his sureties to other or greater liability than they risked when they signed the bond. We need not consider the questions that might arise were the widow living and suing the appellants for interest.

Under section 14 of the Act of March 29, 1832, P. L. 193, the administrator might have presented his petition to the orphans’ court asking for leave to invest the money left in his hands. The court then would have ordered the investment of the fund in one or more of the securities designated in the act, and, by conforming to the order, he and his sureties would have been free from further liability; but he did not choose to pursue this course, consequently the appellants remained and are liable.

Judgment affirmed.