Webb v. Roetinger

12 Ohio C.C. 730

• Court: Ohio Circuit Courts
• Decided: January 15, 1894
• Status: Published

Opinion

Smith, J.

In this ease we are of the opinion that Roettinger, as administrator de bonis non of the estate of Mrs. Rebecca J. Mack, deceased, was authorized to bring an action upon the bond which had previously been given by James Mack, as administrator of the estate of Mrs. Mack (and who, as administrator of the estate of his wife, had received a large sum of money belonging to her estate, but who had died without filing any account as such administrator, with a large sum of money in his hands belonging to such estate), and to recover from his estate and from the sureties on his bonds, for a breach of the conditions thereof, a judgment for the amount belonging to the estate in the hands of said James Mack, at the time of his death, (less any proper credits to him) with interest thereon from the time that proper demand was made therefor by the administrator de bonis non; the amount of the judgment not to exceed the penalty of the bond, with interest on the amount of the penalty from the time of the demand until the rendition of the judgment, and that is this case, although the fact is, that when the suit was brought, there were no outstanding debts against such estate, and the amount found to have been in the hands of the late administrator would be payable, after payment of the costs and expenses of administration to the distributees of the estate of Mrs. Mack. The fact that a part of the amount found to be in the hands of the late administrator at the time of his death was the proceeds of a policy of insurance on the life of Mrs. Mack, taken out by her in her lifetime, and which, by the terms of the policy, if not paid to her in her lifetime, was to be paid to her executors, administrators or assigns, and which, in fact, was received by her administrator after her death, would not alter the case. This money, when so received by the administrator, became assets in his hands, and was covered by the bond, and a failure by him to pay it to the persons entitled thereto was unfaithful administration, and a breach of the bond.

Wright & Wright, and Burch & Johnson for the Sureties. Robert S. Fulton, for present Administrator.

We further find that there was no release of the sureties by the distributees on the facts set out in the bill of exceptions,and that the court did not err in overruling the motion for a new trial, or in entering the judgment in the case which was entered.

The judgment will, therefore, be affirmed.