59 N.Y.S. 429 | N.Y. App. Div. | 1899
Lead Opinion
We are all agreed in this case except as to the question whether it was necessary for the plaintiff to obtain leave to bring the action. It is proper that we should give the reasons which, in the judgment
A few words, too, may not be inappropriate as to the other questions. Our agreement with Justice Rumsey as to the plaintiff’s right to maintain the,action does not rest wholly upon the authority of Walton v. Walton (4 Abb. Ct. App. Dec. 512). The allegation of the complaint there was that the deceased executor had-in his hands at the time of his death unadministered assets of his testator. It was held that the administrator de bonis non could recover these assets from the executor of the deceased executor'; in specie, if unconverted — their value, if converted into money. The conversion without an. appropriation of the money to the purposes of the estate was deemed but a. partial administration. “ Administration of assets,” said Justice Hogeboom, “implies such a complete disposition of them as not only to collect them from the debtor of the estate — if they are in that condition — but, finally, to place them in the hands of the creditor, legatee, or distributee to whom, after undergoing the process of administration, they finally belong. As before stated, they had not undergone this latter process, and we are obliged, in the state of facts in which the parties have presented the case to us, to assume that the assets required further administration.” The question whether the action could have been maintained for a devastavit was not discussed. Nor was - it discussed in Clapp v. Meserole (1 Keyes, 288). The court there simply held, following Walton v. Walton, that an administrator de bonis non can maintain an action against the representatives of a deceased executor who died without applying the assets which ha'd come to his hands. In the case at bar the allegation is,that the deceased administrator converted the proceeds of his testator’s property to his own use. There would seem to be no substantial ..distinction in principle between the cases. In legal intendment the proceeds of the property sold were here in the hands of the deceased administrator. These proceeds were not administered, in the sense of administration, as defined in Walton v. Walton, Practically it is immaterial whether incomplete, administration, resulting from the failure to place these proceeds in the hands of the persons to whom they finally belonged, was caused simply-by-their retention or by the administrator’s personal use of the funds. It is correctly
We prefer, however, to fortify our conclusion that.the plaintiff may maintain this action by a reference to the provisions of the statute. Section 2606 of the Code of Civil Procedure provides that where an executor or administrator dies, the Surrogate’s Court has the same jurisdiction upon the petition of his successor, to compel the executor or administrator of the decedent to account which it 1 would have against the decedent if his letters had been revolted by a surrogate’s decree. Upon such revocation of letters, the surrogate has full jurisdiction to compel the person whose letters have been revoked to account for or deliver over money or other property, and generally to settle his account. (§ 2605.) Section 2606 further provides that “with respect, to the liability of the sureties in, and for the purpose of maintaining an action upon, the decedent’s official bond, a decree against his executor or administrator, rendered upon such an accounting, has the'same effect as if an execution issued upon a surrogate’s decree against the property of decedent had been i returned unsatisfied during decedent’s lifetime.” Section 2608 then provides: “ Where letters have been revoked by a decree of the Surrogate’s Court, the successor of the executor, administrator, or guardian, whose letters are so revoked, may maintain an action upon his predecessor’s official bond, in which he may recover any money, or the full value of any other property, received by the principal in the bond, and not duly administered by himand to the full extent of any injury, sustained by the estate of the decedent or of the infant, as the .ease may -be, by any act or omission of the principal. The money recovered in such an action is regarded as part of the estate in the hands of the plaintiff; and must be distributed or otherwise disposed of .accordingly.”
It is apparent from these provisions that the purpose of the Legislature was to leave no further trace in the law of this State of
By analogy, the same rule applies in the case of a deceased administrator. Upon the appointment of his successor, the latter succeeds -to all the powers and,duties of his predecessor. The administration of the successor is no longer regarded as separate and distinct from the preceding administration, as it was at common law, but rather as a continuation of it, -the- one beginning where the other left off.. (11 Am. & Eng. Ency. of Law. [2d ed.], 1331.)
The Code, however, makes one important distinction. between a deceased administrator and' one -whose letters have been revoked. In the formei case, where a successor is not appointed, no provision is made for an action upon the administrator’s bond by any “ person aggrieved,” while .in the latter such provision is made. The Code does not seem to contemplate the possibility of failure to -appoint, a successor to a.deceased administrator. At all events, the effect of this distinction is to limit an “aggrieved person’s” right of action at law upon an administrator’s bond’ to cases of revocation. In the case of death, such a persom can proceed at law only through the instrumentality of a successor. Neither of these sections, however, has any relation to an action in equity based, upon .the impossibility of securing redress at law. Their significance, so far as concerns the present question, is only in the plain implication that when
The suggestion that the case on this head is also within the provisions of section 1888 of the Code of Civil Procedure will hardly bear analysis. The article in which this section is found relates in-actions upon official bonds. The first eight sections (§§ 1880-1887)-relate to sheriffs, surrogates and county treasurers — plainly public; officers. Section 1888 then provides for obtaining leave to prosecute the official bonds of public- officers in general where special provision is not otherwise w,ade In/ law. It is quite clear from the context that executors and administrators (other, of course, than the pub-
We have thus gone over these Code provisions quite as though this were an action at law upon the bond. The contention that leave to prosecute the bond was required proceeds solely upon this inaccurate view of the nature of the action. It is essentially an ¡action in equity. It alleges the special circumstances which make it impossible for the plaintiff to obtain against the deceased administrator or his representatives a decree or order of the Surrogate’s Court of the county of New York. It shows that, owing to these special circumstances and this consequent inability, the plaintiff can never point to a literal breach of the condition of the bond. It shows, however, what equity will treat as a breach in every essential and substantial particular ; that the administrator did not faithfully execute the trust reposed in him as administrator, and that he ¡so conducted himself that no decree can be made or obedience enforced against-him or his representatives.
The learned counsel for the surety frankly asserted upon the argument that there was here a wrong without a remedy; that the surety could not be made liable in any manner or under any circnmistances unless there were a literal breach of the precise condition of
Our conclusion is that the action is well brought by the administrator de bonis non, and that leave to prosecute the bond was not essential to its maintenance. This conclusion is supported by the following authorities, as well as by those already cited: Haines v. Meyer (25 Hun, 414); Trust & Dep. Co. of Onondaga v. Pratt (Id. 23); Williams v. Kiernan (Id. 350). (See, also, Harrington v. Keteltas, 92 N. Y. 40; Wiggin v. Swett, 6 Metc. [Mass.] 194; 2 Woern. Am. Law Adm. 749.)
We may add that, though the bond runs to the People, it so runs in form only, for the benefit of those to whom the right of action thereon is given by the statute. Here, as we have seen, the right of action. at law upon this bond is, by the Code., provisions, expressly given to the successor of the deceased administrator, upon. his obtaining a decree against the latter’s personal representatives, as provided in section 2606 (supra). It is because this latter prerequisite to the action at law has, by the misconduct of the deceased administrator, been rendered impossible of procurement, that equity lends the plaintiff its aid. In doing so it but affords him the indemnity which was the essential feature of the, contract, and was neces
The interlocutory judgment overruling the demurrer was right •and should be affirmed, with costs.
Patterson and O’Beien, J.J., concurred; Rumsey, J., dissented.
Dissenting Opinion
The complaint alleges that on the 17th of April, 1894, one Terence A. McCauley, who was also known as Thom,as A. Macaulay, died in the city of New York, possessed of certain personal property, among which were two patents issued by the United States government; that on the 23d of May, 1894, Daniel Macaulay was appointed by the Surrogate’s Court administrator of the estate of the said Terence A. McCauley, and letters of administration were issued to him; that the defendant gave a bond to the People of the State of New York, containing the usual conditions of administrators’ bonds, among which was that the said Daniel Macaulay should faithfully execute the trust reposed in him as-administrator, etc. It is further alleged in the complaint that the administrator took possession of and sold said above-mentioned patents for the sum of $5,000, which he received, but that, having received the money, he did not faithfully administer it nor distribute the same, but converted it to his own use, and did not faithfully execute the trust reposed in him as such administrator. It is further alleged that Daniel Macaulay removed with said property to the State of Massachusetts, and died, leaving no • property and no personal representative in this State; that on the 12th of September, 1898, the plaintiff was duly appointed administrator de Toonis non of the said intestate, Terence A. McCauley, and has qualified as such. It is further alleged that Daniel Macaulay never accounted as administrator, and that the plaintiff was unable to obtain jurisdiction over his estate for the purpose of compelling an accounting in the Surrogate’s Court, and
To this complaint the defendant demurred upon the ground that the court had no jurisdiction of the subject of the action; that the-plaintiff had no legal capacity to sue because no order had been made permitting him to bring this action; that there was a defect of parties, in that the sisters of the said decedent and his niece, being his next of kin, should have been made parties to the action, and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled and from the judgment entered upon that decision this appeal is taken.
The question as to the liability of the sureties upon an administrator’s bond for alleged defaults of their principal has been several times presented in this court in recent cases, and the question not only of the extent of that liability, but as to, the parties necessary in an action brought to enforce it, has been thoroughly examined and decided. It has been determined in this court, in circumstances very like this, that an action might be brought by one of, the next of kin of the intestate (Bischoff v. Engel, 10 App. Div. 240) or by a creditor (Scharmann v. Schoell, 23 id. 398). These cases determined most of the questions that are presented upon this appeal. But it is said that the administrator de honis non has no standing in court to maintain this action. This question also has been substantially decided by the case- of Walton v. Walton (4 Abb. Ct. App. Dec. 512). That was an action by the administrator de honis non against the personal representative of an executor who had died-without applying assets collected, to compel an accounting and. delivery of such assets. The complaint was demurred to upon the ground that the facts did not constitute a cause of action because the administrator de honis non had no interest in the property of the testator which had come to the hands of the executor and by him had been converted into money. This contention was sustained by
As to the further objection that the plaintiff has not legal capacity to sue because no order of the surrogate has been made granting him permission to bring an action, I am of the opinion that that objection is well taken, and that, therefore, the judgment cannot be sustained. The action is brought to recover the penalty of a bond, under seal, running in terms to the People of the State of New York. The ordinary rule in such cases is that no person can sue to enforce covenants contained in an instrument, except such as are parties to the instrument. (Henricus v. Englert, 137 N. Y. 488.) The bond in this case is one required by law, and is given for the benefit of all persons interested in the estate of Terence A.
Section 2607 provides for a case where, by a decree of the surrogate, the administrator has been required to pay a certain sum of money, and an execution has been issued against it upon that decree and returned unsatisfied, in which case the statute prescribes that the plaintiff in the execution may bring an action upon the administrator’s bond. Section 2608 refers to a case where letters have been revoked and a new executor or administrator has been appointed, and provides that such new appointee may maintain an action upon the official bond to recover money or the full value of property received by the. principal on the bond and not administered by him. In such case it is held that the money so recovered is regarded as part of the estate, and must be administered upon as such. In neither of these cases is it necessary that permission should be obtained to sue upon the bonds. The reason of this is clear. In each of these cases there is but one person who has any right of action. The surety upon the bond cannot be subjected, by reason of' any of the circumstances arising under either of those sections- of the Code, to more than one action. For that reason the only person who may sue upon the bond is ascertained as soon as the'right of action arises, and there is no danger of the- surety being vexed by more than one suit.
Section 2609, however, provides for a case where the letters of an executor have been revoked and no successor has been appointed in which case it is provided that any person aggrieved may sue upon obtaining an order from the surrogate granting him leave to do so. The person so suing is entitled to recover any money or the value of any other property received by the principal in the bond and not administered by him, and to the full extent of any injury sustained by the estate of the decedent by any act or omission of the principal. The Code provides that the money recovered in such an action must be paid by the sheriff or other officer who. collects it into the Surro
The case at bar is not within the express provision of section 2609 for the reason that the letters of administration were not revoked and the successor was appointed. But it is clearly within the reason there laid down, because the facts stated in the complaint in this action are such as would entitle the next of kin (Bischoff v. Engel, supra,) or a creditor (Scharmann v. Schoell, supra) to sue. Either of these persons upon bringing his action would be entitled to recover the full amount of the penalty of the bond. If either person brought the action originally, it would not be just to permit it to be maintained by anybody else: If no leave of the surrogate were required, the action might, in the first instance,- be brought either by each one of the creditors separately or by one or all of. the next of kin, or by the administrator de bonis non, in which case the duty of the court would be, clearly, either to consolidate the actions or to permit one to continue and to stay proceedings upon all the others, But such a course would necessarily result in considerable inconvenience to the surety, who is not to be subjected to any greater inconvenience because he is surety than is necessary to protect the rights of the estate, to which he must respond.
There is every reason, therefore, why any one who seeks to become a plaintiff in this action for the benefit of all the rest, should apply to the court for leave to do so. When that is done, the court would be likely to give leave to the person making the first application, if there were no other person better entitled to sue. Were any subsequent application to be made, the court, being put in possession of the fact that an action had already been begun, would forbid leave, and in that way but one suit would be brought, and that suit would be within the control of the court to a very considerable extent.
These reasons- seem to me to be conclusive as showing that it is
Such a requirement is not new in the law. At common law in England the bond of the administrator was given to the Archbishop of Canterbury, and at common law, of course, the action could only be brought in the name of the obligee. Where it became necessary to sue upon the administrator’s bond, the usual course was for the action to be brought by the aggrived person in the name of the obligee, after having obtained permission from the Ecclesiastical Court so to do. (1 Wms. Exrs. 538.) But in a case where an action at law could not be maintained, it was held by the English Court of Chancery that it was in the discretion of the Ecclesiastical Court to determine whether the bond should be brought into the civil court or not. (Parker v. Young, 6 Beav. 261.) The master of the rolls in that case said: “In the absence of all authority on the subject, it does not appear to me that any one can be a specialty creditor under a bond which he does not produce, which is not under his control, which was not executed to him or to his intestate, but was executed to a public officer, and remains subject to the judicial control of the ecclesiastical court, which has discretion to determine
Upon the whole case, it clearly seems to me that such an action should not be maintained unless the court has given leave for that purpose beforehand. And that being so, I am quite clear that the complaint is defective in not containing an allegation that leave was granted ; and, therefore, the judgment should be reversed and the demurrer sustained upon the usual terms.
Judgment affirmed, with costs.
