Ford v. Kittredge

28 La. Ann. 113

• Court: Supreme Court of Louisiana
• Decided: February 15, 1876
• Docket: No. 6094
• Status: Published

Opinions

Ludeling, C. J.

The plaintiff, a recognized creditor of the succession of Kittredge, sued the defendant personally on her bond for tho amount of her claim against the succession. The defendant filed the exception that no cause of action is stated in the petition. .The petition, which is quito lengthy, contains in substance the following allegations among others: That sho is a recognized creditor of the succession for eight thousand dollars with interest; that the defendant was appointed ad-ministratrix of the succession, and that in said capacity she committed gross acts of maladministration to the injury of tho plaintiff to the extent of her debt; that she wasted the property of the succession and has sold and disposed of all the property of the succession, amounting to upward of three hundred thousand dollars, and that sho has neglected and refused to render an account or to pay the creditors, and that for her neglect and maladministration she was dismissed from her office; that she has purchased at the sales of the succession property, for cash, property to tho extent of one hundred and ninoty-ono thousand dollars, for which she has never accounted, and the remainder of the property, or a large portion thereof, has been purchased by tho heirs and others, who have not been required to pay the price, although the terms of sale woro cash. Sho avorrod that the succession was solvont when oponed, but that all the property has been alienated without paying tho creditors. These allegations would seem sufficient to authorize a personal judgment against the administratrix if established by proof. But the defendant says plaintiffs claim has not been recognized by any court, and that individual creditors can not sue a discharged administrator to render him liable on his bond, at least not until he has rendered an account. We can not indorse these views of the law. No one can take advantage of his own laches or tort; it is this neglect or dereliction of duty which gives the right of a personal action against the administrator. In Parmelee et al. vs. Brashear, 16 La. 72, this court said: “It has boon contended that the plaintiffs ought first to have provoked the filing of an account and tableau of distribution by the curator. This would have been very requisite if they, had sought a recovery from the estate administered by him. But the "sole object of the present suit is to recover from the surety of the curator, personally and out of his private property, the damages which they have sustained by the breach of the condition of the bond.” In Elliott, Administrator, vs. White, which was a suit against the surety on a curator’s bond, the defendant excepted that tho district court was without jurisdiction, and that a suit could not bo instituted on the bond until the parties to it have been called upon to comply with its conditions and asked to render an account, etc. Tho court said: “ Tho bond is conditioned for tho due and faithful administration of the estate; the breach it assigns is a failure therein. It becomes the duty of tho defendant to show a due and faithful administration of tho estate of Ms principal.” 5 La. 322; 8 La. 211; 10 La. 26.

The substance of the allegation of the petition is that she has been damaged by the breach of the conditions of defendant’s bond, and a sufficient causo of action is stated.

“ It was the duty of tho curator and Ms representative to account and deliver the amount in Ms hands. For tho performance o'f this duty ho gave bond. * * * This he has not done; and, as a breach of tho condition, the surety is liable to a suit, although neither tho curator nor Ms surety has been sued for .a settlement.” 5 M. 330; Denys vs. Armitage.

It is therefore ordered that the judgment of tho lower court bo sot aside, and that the exception bo overruled, and that tho caso bo remanded to be tried according to law, appellee to pay costs of appeal.

Rehearing refused.