Golder v. Littlejohn

23 Wis. 251

• Court: Wisconsin Supreme Court
• Decided: June 15, 1868
• Status: Published

Opinion

DrxoN, C. J.

In tbis case we have not been favored with any brief or argument by counsel for tbe defendant, and are therefore not possessed of tbeir views. ¥e bave examined the case upon tbe brief and authorities of plaintiff’s counsel, and are satisfied that tbe court below erred in sustaining tbe demurrer. Tbe provisions of tbe statute in regard to tbe prosecution of probate bonds are full and explicit; and, as counsel say, no further authority is required to show that tbis action is instituted in conformity to law, than is found in sections 6, 7 and 12, chap. 104, R. S. Section 6 provides, that in all actions upon such bond's the summons and proceedings shall be in tbe name of tbe judge of tbe county court; section 7, that, on tbe application of any person authorized by tbe chapter to commence an action on such bond, tbe. judge of tbe county court may grant permission to such person to prosecute tbe same, which permission tbe complaint in tbis case alleges was granted. Section 12 authorizes claims for damages on account of tbe breach of tbe conditions of any bond, to be prosecuted by any executor, administrator or guardian in behalf of those be may represent. These provisions, when considered in connection with others to be found in tbe same chapter, seem to us very clearly to authorize tbe maintenance of tbis action. Tbe Case of Stronaeh v. Stronaeh, 20 Wis. 129, on tbe authority of which it is said that tbe court below sustained tbe demurrer, on tbe ground that tbe plaintiff has not legal capacity to sue, presented quite a different question. Tbe question there was, whether an administrator de bonis non could avoid a wrongful sale or pledge of the property of tbe estate by tbe first administrator; and tbe court held, as there was no statute authorizing tbe administrator de bonis non to do so, that tbe action for such devastavit was properly brought in tbe name of tbe heirs of tbe intestate. It needs no argument to show that tbe doctrine there held is wholly inapplicable to a proceeding like this, which is a snit upon the bond, expressly authorized by statute, to compel the executors to pay over and account for the value of the property received by them, and not an action to reach the property itself wrongfully sold, pledged or converted by the executors.

Note. — On a motion for a rehearing, the respondent’s counsel argued, among other things, that the surety could not he made liable on the bond until the county court had made the proper judgment, showing that his principals were in default. 2 Redfield on Wills, 83. At law, it is for the principals to contest the facts alleged as constituting breaches of the bond; it is for the surety to contest only the question of payment. 3 Ohio, 225; 4 Munford, 98 ; Ohio v. Mowatt, 2 Edw. Ch. 57; Jones v. Anderson, 4 McCord, 113; Stewart v. Treasurer, etc., 4 Ham. 98; Gordon v. Justices, etc., 1 Munf. 1; Inglehart v. Stake, 2 Gill & J. 235; Correy v. Williams, 9 Mass. 114; 2 Redf. on Wills, 248, and cases there cited. 2. The administrator de bonis non is not authorized “to do anything except to administer on the estate or assets remaining undisposed of by the first administrator.” Stronach v. Stronach, 20 Wis. 229. An executor’s bond is not “ estate or assets ” (Rusk v. Van Nostrand, 21 Wis. 160), but a mere contract of indemnity. The motion was denied. — Rep.

Of the other points of the demurrer we take no notice, except to say that we see nothing in them for which the demurrer ought to have been sustained.

By the Court. — Order reversed.