4 Pa. 344 | Pa. | 1846
The non-payment of a debt by an administrator is not such a breach of the condition of his administration bond, as will enable the creditor to sue and recover his debt without a previous suit, fixing the administrator with a devastavit.
This principle is ruled in The Commonwealth v. Evans, 1 Watts, 437; recognised in the case of The Commonwealth v. Wenrick, 8 Watts, 160. The first was the case of a creditor, the last of a legatee; but this principle is equally applicable to heirs as distributees. The same reason applies to all, viz.: That the liability of the surety is contingent and not absolute, and, therefore, before suit can be brought against the surety, the party in interest, whether creditor, legatee, heir, or distributee, must proceed against the administrator
. We also think that the same principle applies to the plaintiff’s first point, viz., that he assigned, as a breach of the conditions of the bond, that the administrators neglected to file an account in one year from the date of the bond. This breach, it is true, is a forfeiture of the bond; but, like non-payment of. the debt of a creditor, a legatee, or distributee, it is a breach for which suit and judgment against the principal must precede the suit against the surety. We see no difficulty in the way of the distributees, who can have complete redress on the bond against the remaining administrator, who is unquestionably liable, in the first instance, to the distributees, unless discharged by the proceedings in the Orphans’ Court. But if he is not liable, it is very evident the surety is not, as his is a contingent and not an absolute liability. The discharge, if there be one, would undoubtedly avail the surety.
The act of the 15th March, 1832, which alters the mode of proceeding on administration bonds, dispenses with the necessity of a