Irwin v. Backus

25 Cal. 214

• Court: California Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinion

By the Court, Sanderson, C. J. *

This is an action upon the official bond of the defendant Backus as Public Administrator of the City and County of Sacramento, against him as principal and his co-defendants as sureties. The suit is brought by his successor in office to recover the amount of a certain estate which came into the hands of Backus in the course of official business, and which he refused to pay over to his successor, the plaintiff, pursuant to the order and decree of the Probate Court. The plaintiff had judgment in the Court below, and the defendant, having moved for a new trial, which was denied, appeals. The facts, as disclosed by the record, are substantially as follows:

In 1857, Backus obtained letters of administration upon the estate of one J. T. M. Cooper and took charge of the same through one J. C. Barr, who for a long time previous and subsequent thereto acted as the clerk or agent, or attorney in fact of Backus, in connection with the business of his office of Public Administrator. The business in the Probate Court seems to have been transacted by Backus, and the collection of the assets belonging to the estate seems to have been made by Barr. After keeping the estate in his hands without rendering an account until May, 1859, Backus, upon petition of the heirs, was cited by,, the Probate Court to render his account pursuant to law. In reply to the citation, Backus alleged that the deceased was not a resident or inhabitant of the county at the time of his death, but that he was a resident of - County, (name not stated,) and denied the jurisdiction of the Court, charging that the letters of administration which had been issued to him were therefore null and void. At the same time he filed his final account, and a day was appointed for the healing, of which due notice was given according to law. Upon the issues thus formed a trial was had in the Probate Court, resulting in the following finding of facts and decree: “ Sometime in the spring of 1857, J. T. M. Cooper departed this life in the City and County of Sacramento, where he resided prior to and at the time of his death. It does not appear that he ever had any residence in the State of California elsewhere than in Sacramento County. After the death of said Cooper, to wit: on the 21st day of April, 1857, Gordon Backus, then Public Administrator of Sacramento County, petitioned to be appointed administrator of said estate, and on the said 21st day of April, 1857, the Probate Court of said County of Sacramento made an order appointing said Gordon Backus administrator of said estate as aforesaid of said J. T. M. Cooper, and that he take charge of and administer upon the same according to law. That said Probate Court also appointed John C. Barr, L. Farmer and M. McIntyre appraisers of said estate, who went on and appraised the same, and found the said estate to consist of the following items, to wit: Cash, one hundred and fifty-two dollars and thirty-eight cents; W. H. Bullard’s certificate of deposit, five hundred and fifty dollars; W. L. Pritchard’s note, six hundred and fifty dollars; T. A. Goodell’s note, two hundred dollars; A. P. Carter’s note, two hundred and eighty dollars; making a total sum of one thousand eight hundred and thirty-two dollars and thirty-eight cents. The whole of which estate, according to the items aforesaid, was paid over by Morrison McIntyre to John C. Barr, who received the same as the agent or clerk of the said Gordon Backus, and who was authorized by the said Backus to receive the same by his authority. Afterwards said Barr collected all the notes outstanding, save the note on A. P. Carter. That said Barr, acting as the agent or clerk of Backus, collected in cash the sum of one thousand five hundred and sixty dollars; that out of this some small bills were paid, such as funeral expenses, affidavits of appraisers, etc. That said Barr paid over to said Backus, in cash, the sum of one thousand three hundred and thirty-eight dollars, in addition to the sum of two hundred and two dollars and thirty-eight cents, which Barr collected, which he informed the said Backus was subject to his order. But the said Barr asked the said Backus to use the said amount of two hundred and two dollars and thirty-eight cents on account of what Backus was owing him, which Backus allowed him to do. That Backus never filed any appraisement of said estate, never gave any notice to creditors as required by law, or rendered any exhibit whatsoever of the condition of said estate.”

Upon the foregoing facts the Court decreed that Backus should be removed from the office of administrator of the estate in question, and that he should pay over to his successor the-sum of one thousand five hundred and forty dollars and thirty-eight cents, and deliver to him the Carter note for two hundred and eighty dollars. The plaintiff was appointed such successor and Backus was ordered to pay over to him as aforesaid. The plaintiff demanded the estate from Backus, who refused to pay over the same.

On the trial, in connection with other evidence of like tendency, the foregoing proceedings in the Probate Court were offered in evidence by the plaintiff for the purpose of proving a devastavit against Backus and fixing the amount of their liability against his sureties. The evidence was objected to upon the ground that the sureties were not parties to the proceedings and therefore unaffected thereby, and that as against them the devastavit, and the amount thereof, must be established by other evidence. The Court admitted the evidence, but before the case was finally submitted to the jury the opinion of the Court seems to have changed, for the jury were instructed in effect to disregard the evidence and base their verdict entirely upon the other evidence in the case. With the proceedings of the Probate Court discarded, appellant claims that the other evidence in the case fails to sustain the verdict, and that some portion of it was improperly admitted. All the points made by appellant are founded upon the theory that the proceedings in the Probate Court were inadmissible for any purpose as against the sureties, and hence become immaterial if that theory proves fallacious. As we are of the opinion that the proceedings were admissible, we shall therefore confine ourselves to the consideration of that question. If the proceedings were admissible, there being no pretense of fraud or collusion, another trial would result in a like verdict, and hence if error was committed in admitting other evidence bearing upon the same point such error (in the absence of any conflict of testimony, which is the case here), becomes inconsequential.

There is some conflict of authority as to the admissibility of this kind of evidence in an action upon an administrator’s bond against his sureties for a breach of the bond by the principal, and as to its effect when admitted. The Supreme Court of North Carolina decided that a recovery against a guardian was no evidence against his sureties in an action upon his bond for non-payment of the judgment. (McKellar v. Bowell et al., 4 Hawks, 37.) The same Court held that a judgment obtained by a creditor of an intestate against his administrator could not be used as • evidence by the creditor in an action against the sureties upon the administrator’s bond. (McBride v. Clark, 2 Hawks, 43.) In several of the other States a contrary doctrine has prevailed. The Supreme Court of Massachusetts has decided that in an action upon an administrator’s bond against the administrator and his sureties, for a refusal on his part to pay a judgment recovered against him, such judgment, if not obtained by fraud and collusion, is conclusive upon the sureties in regard to all- matters of defense affecting the merits of the claim as between the parties to such judgment. (Heard v. Lodge et al., 20 Pick. 53.) In New York it has been held that whatever binds and concludes the administrator equally binds and concludes his sureties. (Baggott v. Boulger, 2 Duer, 160; The People on the relation of Demarest v. Laws, 3 Abbott’s Practice Reports, 450.) So in Pennsylvania it has been held that a decree of the Orphans’ Court against an administrator is conclusive upon his sureties. (Garber v. The Commonwealth, 7 Barr, 265.) In Indiana an administrator was convicted by the finding and decree of the Probate Court of having committed waste. His settlement was opened up and the Court found that he had in his hands, unaccounted for, the sum of one thousand seven hundred and thirty-two dollars belonging to the decedent’s estate. This finding was held to be conclusive upon his sureties both as to the waste and the amount thereof. (Salyer v. The State, 5 Porter, Ind. 202.) The same doctrine prevails in Kentucky, Missouri, and South Carolina. (Hobbs et al. v. Middleton, 1 J. J. Marsh, 177; State v. Holt, 27 Missouri, 340; Lyles v. Caldwell et al., 3 McCord, 138.) In South Carolina it seems to be doubted whether the decree of the Ordinary is conclusive of anything more than the fact that the administrator has been legally cited to account, and of the different items composing his account, so as to relieve a Court of law from an investigation into them merits. (Simkins v. Cobb, 2 Bailey, 60.)

As a general rule, sureties upon official bonds are not concluded by a decree or judgment against them principal, unless they have had their day in Court or an opportunity to be heard in them defense; but administration bonds seem to form an exception to this general rule, and the sureties thereon, in respect to their liability for the default of the principal, seem to be classed with such sureties as covenant that them principal shall do a particular act. To this class belong sureties upon bail and appeal bonds whose liability is fixed by the judgment against their principal. This distinction seems to be founded upon the terms of the obligation into which the sureties upon an administration bond enter, which are that their principal shall faithfully perform all the duties imposed upon him by the nature of his trust, and will account for and pay over all money which may come into his hands pursuant to the orders and decrees of the Probate Court. The account must be rendered to and settled by the Court, and the money must be paid out and distributed by and pursuant to the orders and decrees of the Court, and the undertaking of the sureties is that their principal will do all this. “ The Ordinary agrees to place in the hands of the administrator the goods, chattels, etc., of the deceased person, to be by him well and faithfully administered, and the administrator and his sureties undertake that the administrator shall make a just and true1 account, etc., whenever required by the Ordinary, and pay over, etc. Now the administrator is the person who. is cognizant of all the affairs of the estate. The surety is not supposed to know anything about the accounts. The surety is not required to go before the Ordinary. He knows that he cannot be made liable until his principal has been called to account, to pay over, and a decree to that effect has been made by the Ordinary. His contract, then, is made with reference to all this.” (Lyles v. Caldwell et al., supra.)

The condition of the bond in the present case is to the effect “ that the said Backus shall faithfully perform all the duties enjoined upon him by law as such Public Administrator, and particularly that he will account for and pay over all moneys and property that may come to his hands as such administrator.” ]This means that he will account to the Probate Court and will pay over, to such persons as such Court may direct, all moneys and property of which he may become possessed in his oficial capacity; or, in other words, he will obey the orders and decrees of such Court.x Such are the terms of the contract, and, upon the refusal of the administrator to obey such order or decree, the liability of the sureties attaches, and they are bound to make good the default of their principal, and cannot go behind the decree to inquire into the merits. They may show in defense either that the bond was not made, or that the decree was not made; or, if made, that the same has been obeyed; or that the same was obtained by fraud or collusion; but they cannot show that the Court has erred in making the decree, or that no assets ever came into the possession of the administrator, although the Court has so, found and adjudged. If any error has been committed a remedy is afforded by appeal. Until the order or decree is reversed it is equally conclusive upon the administrator and his sureties. (The People on the relation of Demarest v. Laws, supra.) We think the proceedings of the Probate Court were admissible, and, in the absence of any fraud or collusion, were conclusive upon the sureties both as to the devastavit and the amount thereof.

It follows from what has been said that the verdict of the jury was right, although errors may have been committed by the Court; and there being no pretense that the decree was the result of fraud or collusion, a new trial would not result in any advantage to the appellants.

Judgment affirmed.