124 Iowa 125 | Iowa | 1904
Harriet L. Brainard died in 1892, leav
With reference to their liability on the bond, the sureties contend that the plaintiff is not the real party in, interest; that they are not liable for maladministration of their principal in executing the provisions of the will with reference to setting apart and administering the fund from the proceeds of which the annuities were to be paid; that their principal, as' administrator, did not have, by virtue of his office, the right to sell the real estate of the deceased, and that they are not liable for his failure to account for the proceeds of such sales; and that their principal had converted the assets of the estate to his own use, and did not have on hand such proceeds at the time the bond in suit was executed, and received no assets of the estate subsequently to that time for which he has not accounted. We will proceed to a discussion of the legal questions raised by these contentions.
But the final answer to the contention for appellants in this respect is that Lord, as administrator, was charged with the duty of preserving the fund from which the annuities were to be paid, as well as all other funds of the estate. The grounds on which this conclusion is based will be more fully explained in a subsequent division of this opinion, but it is sufficient now to say that, if we have correctly reached this conclusion, then there is no room for controversy as to Lord’s liability as administrator.
This view was evidently entertained by the lower court when plaintiff was appointed as successor to defendant Lord, for the order of the. court, was: “ That the said R. T. O. Lord and any and all other persons having in their custody, possession, or under their control money, property, or valuable things of whatsoever kind, character, or description belonging to the estate of the said Harriet L. Brainard, deceased, immediately on said G. D. Ellyson qualifying as such administrator of said estate, turn over, transfer, and deliver the same to the said G. D. Ellyson', as the administrator of said estate. That the said G. D. Ellyson, as administrator of said estate, as soon after he shall have qualified as such administrator as is practicable, secure and collect all of the assets belonging to said estate, and prepare and make to this court a full and complete report showing the actual condition of said estate, its assets and liabilities, and all the facts pertaining thereto; and that the said G. D. Ellyson, as such administrator, do all such things and take all such steps as may be necessary in order to secure and collect the assets of said estate, and protect and preserve the same.” We reach the
But in States where the reform procedure has been introduced the fictitious judgment for the full amount of the penalty where the real damages are less than the penalty has been abandoned, and judgment is rendered directly against the sureties for the real damage, not exceeding the penalty of the bond. This rule is recognized by Code, section 3639. So far as the principal is concerned, it is unquestionably true that, when the amount of the damages is ascertained by judgment, interest should be included from the time of his breach of duty, although at that time the amount of his liability had not been adjudicated. In other words, the principal is liable for interest on the amount subsequently found due from the time of his default, although it was not rendered certain by any judgment. It was the principal’s duty to ascertain and tender the amount for which he was liable in order to avoid liability for interest. But the contention of counsel 'for' appellants is that as to sureties there was no obligation to pay until the amount of the principal’s liability was ascertained by an adjudication. We cannot concur in this view. It was equally the duty of the sureties .as of the principal to see that the principal paid over the amount of the funds in his hands for which the bond was given as security at the time when his duty to pay became fixed by the entry of an order that he account for and pay over to plaintiff the funds in his hands. The amount of his liability could then be determined by computation, and became a debt of the sureties as well as of the principal; and, as it now appears that the amount at that time exceeded the penalty of the bond, the full amount of the bond became due from the sure
There are cases to the contrary in Michigan, North Carolina, South Carolina, and Missouri, and perhaps other States; but in the first Michigan case on the question, which has been followed in subsequent cases as establishing the rule in that State, there is a dissenting opinion by Judge Ohristiancy (Fraser v. Little, 13 Mich. 195, 87 Am. Dec. 741); and in the recent North Carolina case there is a dissent by Judge Clark (New Home Sewing Machine Co. v. Seago, 38 S. E. Rep. 805). The case before us is not one for the recovery of unliquidated damges in the proper meaning of the term. Whereatt v. Ellis, supra. The amount for which Lord should account was certain and definite, although it could only be ascertained, for the purpose of rendering judgment, by evidence and computation. But this would be equally true if the obligation had been for the payment of a specified sum on which there had been partial payments. The trial court correctly held that the sureties were liable for interest on the penalty of the bond from the time of breach under the concession that at that time Lord was bound to account for an amount exceeding the amount named in the bond.
The judgment entered by the trial court was correct, and it is ARBIRMED.