2 Edw. Ch. 57 | New York Court of Chancery | 1833
This case divides itself into1 two distinct branches: the one as to whether Martha Mowatt is still to be regarded as administratrix of her late husband and accountable for the property which came to his hands as the administrator of Elias Mowatt; and the other, as to the sureties and their liability in a court of equity.
1. By statute, although not at common law, the executors and administrators of an executor or administrator are liable for a devastavit or misapplication of assets by the first executor or administrator. The latter becomes personally responsible for any waste or conversion of the property to his own use and the claim for it may be pursued against his representative in a court of equity. Hence, the original bill was properly filed against Martha Mowatt: she being, at the time, of age, holding the office • of administratrix and acting therein. On account of the incompetency of infants to bind themselves by bond or to render themselves liable to account for property which may come to their hands during minority, they cannot lawfully be appointed to fill the office of administrator. Whenever the right to administration devolves upon an infant, the proper course is, to grant administration to his guardian or to some other person durante minore catate. If, through mistake or inadvertence, the appointment has been conferred upon an infant, it may be revoked by the surrogate: Abbott v. Abbott, 2. Phillim. R. 578. But, for all acts done by such person as administrator (in respect to the property of the intestate) after he comes of age and before the revo
Although Mrs. Mowatt has not regularly accounted before the surrogate to the new administrator, yet, from the statement in her answer relative to the property which has come to her hands, it seems unnecessary to refer the matter to a master. The amount is not disputed. Upon payment of the money to Mr. Miller, she can be discharged and dismissed altogether from this suit. As to her Claim for costs s I cannot allow her them in the suit where she has filed the cross or supplemental bill. This was done for her own convenience. Even if it were necessary as connected with her rights, still she brought the necessity of it upon herself, by continuing to hold the office of administratrix until the bill in the original suit was exhibited against her. She should either have divested herself of the character earlier and before the necessity of a bill for the purpose arose or have held on and not raised the objection to the validity of her own appointment. In either case the costs would have been avoided. She must bear her own costs of this suit: Badeau v. Rogers, 2. Paige 209. The utmost I can do is to exempt her personally from the payment of the defendant’s
2. The other branch of this case is, perhaps, more important, since it involves not only a question of jurisdiction, but also a rule of practice in relation to sureties in administration bonds which is not clearly settled.
The form of the bond prescribed by our statute, and the provisions connected with it, are taken from the 22. and 23. Car. II. ch. 10., called, the statute of distributions. By the latter, the bond is taken in the name of the ordinary who grants the administration; and it remains with him. Here, it is made to the people of the State of New York, and is held by the surrogate; and in addition to the English words that the bond shall be valid and pleadable in any court of justice, our statute goes on to say, “ in case the bond shall “ become forfeited, it shall be lawful for the surrogate who “ granted the administration to cause the same to be prose- “ cuted in any court of record, at the request of any party “ grieved by such forfeiture; and the monies recovered upon “ such bond shall be applied towards making good the dama- “ ges sustained by the not performing the condition, in such “ manner as the surrogate shall, by his sentence or decree, “ direct.” No such express direction is contained in the English statute; and it may be considered a superfluous provision in ours: since, without it the courts have held it to be the right of a creditor (as well as of the distributee) ex debito justitice to sue in the courts of law upon an administration bond in the name of the ordinary—although a distinction was once taken between a next of kin and a creditor as to the right of suing upon such a bond: Greerside v. Benson, 3. Atk. 248.; Archbishop of Canterbury v. House, Cowp. 140. S. C. Lofft, 622. In proceeding directly at law upon these bonds in an action of debt, the great difficulty is to ascertain how far the condition has been broken and to furnish the proper evidence of a devastavit, so as to enable the plaintiff to maintain the action. ' The forms of pleading in an action of
The People v. Dunlap, 13. J. R. 437., may, perhaps, be considered as relaxing, in some measure, the rule which other American decisions profess to establish. But, however this may be, and even admitting the necessity of a rigid adherence to the rule in courts of law, grounded upon their inability to try all the questions which might become necessary to make out a case of devastavit in an action upon the adminis
I am so well satisfied with the views there expressed and the course of reasoning adopted on the subject, that, if not bound to acknowledge the case as an authority, I am content to use it as a precedent. The circumstance of there being no person legally representing the deceased executor against whom a suit at law could be brought in order to determine the matter of a devastavit appears to have had some weight with the court in its deciding that chancery will take cognizance of the question in the first instance. A similar difficulty, although, perhaps, not an insuperable one, would be found to éxist in the present case as to fixing a devastavit
Then, as to particular directions in the decree. The complainant was a specialty creditor of Elias Mowatt, and, as such, entitled to a preference over simple contract creditors in the assets which were in the hands of John E, Mowatt,,