Chaquette v. Ortet
1882 Cal. LEXIS 512
Cal.
1882
Check Treatment
Ross, J.:

Eugеne Herteman died intestate. T. A. Mitchell was appointed administrator of his estate, and the appellant became surety on his bond. Mitchell died intestate, without having filed any account of his administration of Herteman’s estate, and Elizabeth Mitchell was appointed administratrix of the estate of T. A. Mitchell. Subsequently a bill in equity was filed by the respondent herein, as administrator of thе estate of Herteman against Elizabeth Mitchell, administratrix, for an accounting of the doings of T. A. Mitchell as administrator of the estate of Herteman. To this bill the sureties on the bond of Mitchell, including the appellant, were made parties. *599The sureties (inсluding the appellant) demurred to the bill, and objected to being joined with the administratrix in the action, which objection was sustainеd by the Court, and, thereupon, they were dismissed therefrom. The action proceeded against the administratrix, and resulted in a dеcree stating and settling the account, by which it was ascertained and determined that the estate of Mitchell was indebted to the estate of Herteman in the sum of eight thousand four hundred and eighty-two dollars and fourteen cents, in gold coin of the United Statеs, for money received by Mitchell as administrator of the estate of Herteman, with interest, over and above all just chargеs, claims, and disbursements; and judgment was entered in favor of the plaintiff for that sum. In the complaint in the present action, which is brought against ‍‌​​‌​‌‌‌​‌‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‍Mitchell’s sureties, it is averred that the judgment just mentioned is in full force, and that no payment thereon or upon the indebtedness оf Mitchell to the estate of Herteman has ever been made, but the whole thereof remains unpaid; that the estate of Mitchell is insolvent, and that there has never been any property of his estate available for the payment of said indеbtedness, and that the plaintiff has exhausted all means at his command to collect the said indebtness from his estate, but has been unable to do so; and these averments stand admitted by the pleadings. The Court below held the decree in the case of thе administrator of the estate of Herteman against the administratrix of the estate of Mitchell conclusive against Mitchell’s sureties; and this ruling constitutes the principal ground of the appeal.

The liability of the surety depends upon the liability of the principal, and does not attach until that of the latter has been determined by the judgment of a Court of competent jurisdiction. During thе life-time of the administrator, the surety could not be sued until the status of the account had been fixed by decree of the Probаte Court. (Allen v. Tiffany, 53 Cal. 16.) But when the liability of the principal thus became fixed, that of the surety also attached, and upon the failure of thе principal to pay the money, an action could have been ‍‌​​‌​‌‌‌​‌‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‍maintained against the surety. In such case the decree of the Probate Court would have been conclusive upon the status of the account, as respects the sureties as well as *600the administrator. (Irwin v. Backus, 25 id. 222.) Here, the administrator having died without rendering an account, jurisdiction to compel an accounting on thе part of his representative, vested in the appropriate Court of Equity (Bush v. Lindsey, 44 id. 125); and carrying the doctrine of Allen v. Tiffany, supra, to its logical conclusion, the adjustment of thе account by that Court was pre-requisite to an action against the sureties. If in such action for the settlement of the aсcount of the principal the sureties were entitled to be heard, the appellant in the present case was afforded that opportunity; for he, together with the other sureties on the administrator’s bond, ‍‌​​‌​‌‌‌​‌‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‍was made a party to the bill in equity, and upon his own objection was dismissed therefrom. He now objects that he can not be bound by a judgment rendered in an action to whiсh he was not a party, and that he is entitled to be heard upon the question whether or not his principal was indebted to the еstate of which he was administrator. To this we think the maxim allegans contraria non est audiendus applies. That maxim expresses, in technical language, the trite saying оf Lord Kenyon, that a man shall not be permitted to “ blow hot and cold ” with reference to the same transaction, or insist, at different times, on the truth of each of two conflicting allegations, according to the promptings of his private interest. (Broоm’s Legal Maxims, page 130, and authorities there cited.)

The decree of the District Court determined that T. A. Mitchell held in his hands, at the time of his death, eight thousand four hundred and eighty-two dollars and fourteen cents belonging to the estate of Herteman, and acсordingly awarded judgment against his administratrix for that sum. There is no provision of the statute, that requires a copy of such a judgment to bе ‍‌​​‌​‌‌‌​‌‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‍filed in the Probate Court, as a prerequisite to its payment by the administratrix. Indeed, there is no provision of the statute providing fоr the settlement of the account of an administrator who dies before rendering an account. It is because of the аbsence of such statutory provision, that the right and duty to compel such accounting belongs to a Court of Equity. (Bush v. Lindsey, 44 Cal. 25.) The decreе of a Court of Equity in such a case does not come within the provisions of Section 1594 of the Code of *601Civil Procedure, nor within the decision in the Matter of the Estate of Schroeder, 46 Cal. 304; but so far, at least, аs the enforcement of the payment it directs against the estate of the intestate, it is to be regarded in the light of a deсree of the Probate Court settling the account and directing payment. The Court of Equity, taking the place of the Probatе Court for the purpose of settling the account, takes its place, also, in the matter of directing payment out of thе estate, of the amount it finds to ‍‌​​‌​‌‌‌​‌‌​‌​‌​‌​​‌‌‌​​‌‌‌​​‌‌‌​‌​‌‌‌‌‌‌‌‌‌​‌‌‌‍be due from it. When it was thus determined that the estate of appellant’s principal was indebted to the estate of which he was administrator, for moneys received by him and unexpended, and payment thereof was direсted, it became the duty of the administratrix of the estate of the administrator to make the payment, and her failure to do sо constituted a breach of the bond sued on, for which the sureties are liable. (Stovall v. Banks, 10 Wall. 588.)

The point that the complaint in the presеnt action should have alleged that the decree of the equity Court was never appealed from, is not well taken. The complaint charges that that decree remains unpaid and in full force, which is sufficient. (Freeman on Judgments, Secs. 432-3-4, and authorities there cited.)

Judgment affirmed.

McKinstry and McKee, JJ., concurred.