Administration Bond of Green

| New York Court of Chancery | Mar 15, 1851

The Ordinary.

The condition of an Administration bond is, that the Administrator exhibit an Inventory in six calendar months from the date of the bond; and well and truly administer the personal estate according to law; and make a true account of his administration in twelve calendar months from the date of the bond; and deliver and pay all the residue of the personal estate which shall he found remaining upon the account of the administration, the said account being first allowed by the Orphans’ Court, to such person or-persons as shall by law be entitled to receive the same.

The “ act concerning executors, and the administration, and distribution of intestates’ estates,” provides, that, in case any Administration bond shall become forfeited, it shall be lawful for the Ordinary to cause the same to be prosecuted, at the request of any party grieved by such forfeiture; and that the monies recovered upon such bond shall be applied towards making good the damages sustained by the not performing the said condition, in such manner as the Judge of the Prerogative Court ■ shall by his sentence or decree direct. And that it shall be lawful for the Judges of the Orphans’ Court of the County, &c., after the administrator shall have legally accounted, to order an •equal distribution of what shall remain, after paying debts and expenses, among, &c., or to the next of kindred to the intestate in equal degree ; and the same distribution to decree and settle ; and the persons entitled to such distribution shall have their remedy at law, in case of non-payment, for the recovery of the same, against the Administrator so accounting : saving to every one supposing himself aggrieved his right of appeal.

The petition on which the order was made for the prosecution of the Administration bond of Martin L. Green as Administrator of Lewis W. Green states, that Lewis Green, since deceased, was the sole heir at law of the intestate, Lewis W. Green; and that the petitioner is the Administrator, &c., of the said Lewis Green. That the Administration bond of the said Martin L. Green is dated January 5, 1848. That said Martin L. Green • did not within twelve calendar months settle Ms administration accounts in the Orphans’ Court. That, in November, 1849, he settled Ms administration accounts ; and that thereupon a balance of $528,661-2 was found in his hands as such Administrator ; and that he did not pay the said balance, or any part thereof, to the said Lewis Green, in his life time, nor has he paid the same, or any part thereof, to the petitioner, the Administrator, &c., of the said Lewis Green; but wholly neglects and refuses to do so. Suit Las been instituted on tbe bond in tbe Salem Circuit; and at tbe November term, 1850, of that Court, tbe defendants were ordered to plead in ten days. A motion is now made to vacate tbe order made, on tbe said petition, for the prosecution of tbe said Administration bond of Martin L. Green, on' several grounds, above stated in the case. The motion is made in behalf of the Administrator and his sureties, the defendants in the suit at law. They do not deny any fact stated in the petition on which the order for prosecution was made.

All they say as to the facts stated in the petition is, that no proof was made of them to the Ordinary. The want of verification of the facts stated in the petition is not a ground for vacating, at the instance of the obligors in the bond, an order-to prosecute the bond. 1 Halst. Ch. 97. This disposes of the first six reasons, and part of the seventh. Another part of the seventh reason is, that it does not appear that any decree of distribution was made by the Orphans’ Court.-

I do1 not understand that the Ordinary, on a petition for an order for the prosecution of an Administration bond, is to adjudicate that the bond has been forfeited. This would involve the necessity of calling all proper parties before him, and of putting the petitioner through the regular stages of a suit. The law Court before. which the bond is to be prosecuted is the proper tribunal to decide whether the bond has been forfeited. I suppose’it was in this view that-the Court, in 1 Halst. Ch. Rep. 97, said, that no complaint could be niade against an order to prosecute on the ground that no forfeiture was made to appear.

If the bond has not been forfeited, the plaintiff in the suit at law on the bond will fail. It would not be proper for the Ordinary, on a petition to prosecute an Administrator’s bond for not paying a distributive share, to decide whether such a bond can or cannot be forfeited until the Orphans’ Court make a decree for distribution. The question, also, whether an Administration bond can be prosecuted at law by a distributee without the offer of a refunding bond, is a question for the law Court.

As to the 9th and last reason,' the Ordinary’s not requiring a bond of indemnity against costs, on granting the order to prosecute, is not a reason for vacating the order. 1 Halst. Ch. 97. Butin this case a bond of indemnity was given, according to the order in that behalf made by the Ordinary.

Motion denied.