The opinion of the Court was delivered by
Mr. Justice BeEasE.
It appears from the record that on or about March 28, 1914, one Jason Boyd, an employee of the Seaboard Air Line Railway Company, was killed in a wreck as a result of the negligence of his employer. He left surviving him a widow and a small son. The widow, Matilda Boyd, administered on the estate of her deceased husband, the Probate Court requiring her to execute a bond in the sum of $100, which was signed by one L. A. Richie, the defendant in the present case, as surety. Thereafter, as such administratrix, Mrs. Boyd brought an action under the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59) against the railroad company for damages for the wrongful death of her husband, the suit being instituted for the benefit of
herself, as his widow, and his son, Allen Boyd, who was then about eight or nine years of age.
The jury, on trial of the case, returned the following verdict: “We find for the plaintiff Two Thousand Two Hundred Twenty-seven and 27/100 ($2,227.27) Dollars, of which we apportion Four Hundred Eighty-four and 92/100 Dollars for the benefit of Allen Boyd and One Thousand Seven Hundred Forty-two and 35/100 ($1,742.35) for the benefit of Matilda Boyd.”
After Allen reached his majority, his mother, the administratrix, in the meantime having died leaving no estate, he brought this action against the defendant, Richie, as surety on the bond, alleging that the amount of the verdict rendered in the case against the railroad company had been paid to the administratrix, but that he had never received any part of it. The defendant interposed a demurrer to the complaint, which was sustained by his Honor, Judge Mann, on the ground that the money apportioned Allen in the action named was never any part of the estate of Jason Boyd, and any misappropriation of such funds by the administratrix .would not be such a violation of the condition of the bond signed by the surety, Richie, as would make him liable thereon. The plaintiff appeals and excepts to the holdings of the Circuit Judge.
The appellant concedes that the money in question did not become a part of the estate of the intestate Boyd, in the sense that it became liable for his debts and passed under the statute of distribution. He contends, however, that the administratrix brought the action as she was bound to do under the statute; that she collected the money by virtue of her office; that she was bound to disburse it, not personally, but officially; and that the surety knew this as a matter of law, and cannot now deny liability on the bond.
We are impressed with this view of the matter. While Matilda Boyd was appointed administratrix of the estate of Jason Boyd, in that capacity, neverthe
less, she was made by law trustee of the estate of the minor, Allen Boyd, coming into her hands as a result of the action brought by her under the statute as such administratrix. Certainly, with regard to that fund, either in its collection or disbursement, she could not and did not act in the capacity of a private citizen, for as such she had no authority to act in the matter, and officially it is evident that she could only act as administratrix.
In the case of
Ætna Casualty & Surety Co. v. Young,
107 Okl., 151, 231-P., 261, 264, the following interesting and logical discussion of the question is found:
“The statutes provide that this suit to recover this money shall be maintained by the personal representative, an officer of the Court, and in this case the personal representative is the administratrix of the estate of A1 Young, deceased. It was the statutory duty of the administrartix in her official capacity as administratrix, and not otherwise, to maintain this action. The right and duty to maintain the action includes- the right and duty to collect and receive into her own hands, for distribution, the moneys which the action is brought to recover. Having been appointed such administratrix, no officer or person other than she could do so, and she could do so only in her official capacity. Now the surety company on the bond says to us that she must distribute the fund, not in her official capacity, as administratrix, but as a statutory trustee. Why, the only statutory trustee we have here is the administratrix and she is an officer of the Court. If it be otherwise, then such statutory trustee of this fund is not an officer but an unsworn, unbonded private person who played the part of an officer of the Court in exercising the power to collect and
ipso fado
becomes a private person to distribute funds in his official hands. Was it the intention of the lawmakers to grant this power to collect to one, as an official, and then with the money in her hands make no requirement that as an official she distribute the same ? Holding the money as an official, does she distrib
ute same as a private person? No, for in that same capacity-in which she received, so in that capacity must she distribute. Then she disburses as an officer, and nowhere in relation to these matters was but one office created by law, and that office was labeled administratrix, the office by authority of which alone she, and none other, could collect. The duties she owed in disbursing this fund were the duties consigned to her by law; they were official because as a private person she had no right to collect the money. These duties then are a part of the statutory obligation of her trust. * * *
“If our theory of the liability of the surety is erroneous, why did the lawmakers enact into Section 824 the provision that this suit should be maintained only by the administrator if one were appointed? Why were they not content to let the widow or the next of kin themselves maintain this action in their own names? * * * Bodly stands out the only plausible reason, to wit, that they desired to give the heirs the protection of a bonded officer.”
In
Patterson v. Tate,
141 Tenn., 607, 213 S. W., 981, 983, with regard to this question, the Court had this to say:
“By the third assignment of error it is insisted that the Court of Civil Appeals erred in not holding that the judgment against the administrator and complainants, as his sureties, was void, because the fund received by said administrator from the railroad company in settlement of claims against it for the wrongful killing of the intestates of said administrator did not constitute any part of the estates of said intestates, and the sureties of the administrator could not, therefore, be held liable for the same.
“We think this assignment of error is wholly without merit.
“It was held in
Glass v. Howell, 2
Lea (Tenn.), 50, that the sureties of an administrator who has actually collected damages sustained by his intestate by injuries resulting in his death are liable to the extent of the penalty of the administrator’s bond for the amount thus collected, although
the administrator was permitted by the next of kin to retain the money until certain debts of the intestate, for which the fund was not legally liable, were paid out of it; a credit being allowed for the debts thus paid.”
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The opinion of the Court was delivered by
Mr. Justice BeEasE.
It appears from the record that on or about March 28, 1914, one Jason Boyd, an employee of the Seaboard Air Line Railway Company, was killed in a wreck as a result of the negligence of his employer. He left surviving him a widow and a small son. The widow, Matilda Boyd, administered on the estate of her deceased husband, the Probate Court requiring her to execute a bond in the sum of $100, which was signed by one L. A. Richie, the defendant in the present case, as surety. Thereafter, as such administratrix, Mrs. Boyd brought an action under the Federal Employers’ Liability Act (45 U. S. C. A., §§ 51-59) against the railroad company for damages for the wrongful death of her husband, the suit being instituted for the benefit of
herself, as his widow, and his son, Allen Boyd, who was then about eight or nine years of age.
The jury, on trial of the case, returned the following verdict: “We find for the plaintiff Two Thousand Two Hundred Twenty-seven and 27/100 ($2,227.27) Dollars, of which we apportion Four Hundred Eighty-four and 92/100 Dollars for the benefit of Allen Boyd and One Thousand Seven Hundred Forty-two and 35/100 ($1,742.35) for the benefit of Matilda Boyd.”
After Allen reached his majority, his mother, the administratrix, in the meantime having died leaving no estate, he brought this action against the defendant, Richie, as surety on the bond, alleging that the amount of the verdict rendered in the case against the railroad company had been paid to the administratrix, but that he had never received any part of it. The defendant interposed a demurrer to the complaint, which was sustained by his Honor, Judge Mann, on the ground that the money apportioned Allen in the action named was never any part of the estate of Jason Boyd, and any misappropriation of such funds by the administratrix .would not be such a violation of the condition of the bond signed by the surety, Richie, as would make him liable thereon. The plaintiff appeals and excepts to the holdings of the Circuit Judge.
The appellant concedes that the money in question did not become a part of the estate of the intestate Boyd, in the sense that it became liable for his debts and passed under the statute of distribution. He contends, however, that the administratrix brought the action as she was bound to do under the statute; that she collected the money by virtue of her office; that she was bound to disburse it, not personally, but officially; and that the surety knew this as a matter of law, and cannot now deny liability on the bond.
We are impressed with this view of the matter. While Matilda Boyd was appointed administratrix of the estate of Jason Boyd, in that capacity, neverthe
less, she was made by law trustee of the estate of the minor, Allen Boyd, coming into her hands as a result of the action brought by her under the statute as such administratrix. Certainly, with regard to that fund, either in its collection or disbursement, she could not and did not act in the capacity of a private citizen, for as such she had no authority to act in the matter, and officially it is evident that she could only act as administratrix.
In the case of
Ætna Casualty & Surety Co. v. Young,
107 Okl., 151, 231-P., 261, 264, the following interesting and logical discussion of the question is found:
“The statutes provide that this suit to recover this money shall be maintained by the personal representative, an officer of the Court, and in this case the personal representative is the administratrix of the estate of A1 Young, deceased. It was the statutory duty of the administrartix in her official capacity as administratrix, and not otherwise, to maintain this action. The right and duty to maintain the action includes- the right and duty to collect and receive into her own hands, for distribution, the moneys which the action is brought to recover. Having been appointed such administratrix, no officer or person other than she could do so, and she could do so only in her official capacity. Now the surety company on the bond says to us that she must distribute the fund, not in her official capacity, as administratrix, but as a statutory trustee. Why, the only statutory trustee we have here is the administratrix and she is an officer of the Court. If it be otherwise, then such statutory trustee of this fund is not an officer but an unsworn, unbonded private person who played the part of an officer of the Court in exercising the power to collect and
ipso fado
becomes a private person to distribute funds in his official hands. Was it the intention of the lawmakers to grant this power to collect to one, as an official, and then with the money in her hands make no requirement that as an official she distribute the same ? Holding the money as an official, does she distrib
ute same as a private person? No, for in that same capacity-in which she received, so in that capacity must she distribute. Then she disburses as an officer, and nowhere in relation to these matters was but one office created by law, and that office was labeled administratrix, the office by authority of which alone she, and none other, could collect. The duties she owed in disbursing this fund were the duties consigned to her by law; they were official because as a private person she had no right to collect the money. These duties then are a part of the statutory obligation of her trust. * * *
“If our theory of the liability of the surety is erroneous, why did the lawmakers enact into Section 824 the provision that this suit should be maintained only by the administrator if one were appointed? Why were they not content to let the widow or the next of kin themselves maintain this action in their own names? * * * Bodly stands out the only plausible reason, to wit, that they desired to give the heirs the protection of a bonded officer.”
In
Patterson v. Tate,
141 Tenn., 607, 213 S. W., 981, 983, with regard to this question, the Court had this to say:
“By the third assignment of error it is insisted that the Court of Civil Appeals erred in not holding that the judgment against the administrator and complainants, as his sureties, was void, because the fund received by said administrator from the railroad company in settlement of claims against it for the wrongful killing of the intestates of said administrator did not constitute any part of the estates of said intestates, and the sureties of the administrator could not, therefore, be held liable for the same.
“We think this assignment of error is wholly without merit.
“It was held in
Glass v. Howell, 2
Lea (Tenn.), 50, that the sureties of an administrator who has actually collected damages sustained by his intestate by injuries resulting in his death are liable to the extent of the penalty of the administrator’s bond for the amount thus collected, although
the administrator was permitted by the next of kin to retain the money until certain debts of the intestate, for which the fund was not legally liable, were paid out of it; a credit being allowed for the debts thus paid.”
While the holding of the Circuit Judge in the case at bar is supported by authority
(Maryland Casualty Company v. McAlpin
[31 Ga. App., 303], 120 S. E., 644), the reasoning in the
Young
case, supra, is highly convincing, and appears to us to be conclusive of the question.
We are influenced, also, to some extent in the conelusion we have reached by an examination and comparison of Sections 5387 and 5388 of Volume 3 of the Code of 1922, the first relating to the oath required of an administrator, and the latter to his bond, and Sections 367 and 368 of Volume 1 of the Code of 1922, relating to civil actions for wrongful acts causing death (Lord Campbell’s Act). The statutes as to the administrator’s oath and bond seem to have been first enacted in 1712 and amended in 1789. Lord Campbell’s Act, it appears, was adopted originally in 1859. All these statutes must be, of course, considered together, since they were readopted in the Code of 1922. Before the enactment of the provisions of Lord Campbell’s Act, an administrator, of course, was not required, and had no right to bring the suit provided for in that enactment. When Lord Campbell’s Act was passed, a new duty was imposed upon an administrator, and his bond, of course, covered properly the performance of any duty imposed upon him by statute at the time of his qualification as administrator. .
Section 369 of Volume 1 of the Code also bears at least indirectly upon the matter, since it is there provided that the administrator shall be liable in a case tried under Sections 367 and 368,
Id.,
for costs of the Court “in case there be a verdict for the defendant, or nonsuit or discontinuance, out of the goods, chattels and lands of the testator, or intestate, if any.” There can be no question that the bond of
an administrator would require him to pay the costs of the Court if the estate of his intestate had property in the administrator’s hands subject to.the payment of those costs. We take this as expressive of the legislative intent that the bond of an administrator required a proper distribution of any moneys coming into the administrator’s hands as the result of a suit for the recovery of damages for the death of his intestate by the wrongful act of another.
The order appealed from is reversed and the cáse remanded for trial.
Messes. Justices Stabler and Carter concur.