39 Miss. 791 | Miss. | 1861
delivered the opinion of the court:
This was a petition filed in the Court of Probates by the appellants as distributees of the estate of Walter R. Puckett, to compel the appellee to settle the account of her testator, Hugh A. Lawson, who was joint administrator with one Tompkins of the estate of Puckett.
The answer of the appellee states in substance, that the entire charge and management of the business of the administration was in the hajrds of Tompkins, who received all the property and money belonging to the estate, has made all the settlements with the court and has received all the compensation; and insists that the estate of Lawson is not liable to account.
It appears from the record that administration was granted to Tompkins and Lawson, who executed a joint and several bond with sureties, and returned an appraisement of the estate in the name of both, though the signatures were by Tompkins; that a joint report of sales of personalty was made, but sworn to only by Tompkins; that two annual accounts were returned in the names of both, one of which was signed by Tompkins for both, and the other for himself alone; that a petition was filed by them in their joint names, praying for the sale of the real estate for the benefit of the heirs; and a joint bond executed by them thereupon, and a joint report of sale.
It was proved by the probate clerk that, during the period of
It further appeared that all tbe signatures of Lawson to papers offered in evidence and pertaining to tbe administration of Puckett’s estate were in tbe bandwriting of Tompkins, except a power of attorney executed by Lawson, authorizing Tompkins to apply for and obtain letters of administration in bis name and to execute tbe necessary bond for him, and a letter of Lawson to Tompkins to tbe same effect, and another power of attorney authorizing T. A. Marshall or Tompkins to sign bis name to the bond given on obtaining tbe order to sell tbe real estate.
On tbe bearing tbe court dismissed tbe petition, and thereupon this appeal was taken.
Tbe first question presented for consideration is, whether, from tbe nature of tbe obligation and duty devolving upon tbe two administrators from their execution of a joint bond, Lawson is not responsible for tbe acts of bis co-administrator, though it be conceded that Tompkins received tbe whole of tbe assets and conducted tbe entire administration of tbe estate.
In support of tbe decree of tbe court below, a class of cases is relied on in behalf of tbe appellee, which bold that one executor or administrator is not liable for assets which have come to tbe bands of his co-executor or administrator and been wasted, by tbe mere fact that an inventory in their joint names has been re
In these cases it does not appear whether the executors executed a joint bond, or whether each stood upon his own separate responsibility — a consideration very materially affecting their mutual liability for their acts. But here there is a joint bond, by which each covenants and binds himself that they will both well and faithfully administer the estate. This is the plain obligation, and it is difficult to perceive how any other construction can be given to it than that each becomes bound not' only for himself, but that his associate shall faithfully perform his duty. If either fails, the obligation is broken. If this were not so, what would be the condition of the sureties, in case of a receipt and squandering of the assets by one of the executors who is insolvent, without the knowledge or participation of the other ? Each executor has come under the implied obligation to the sureties that they will both faithfully administer the estate. In case of a recovery against the sureties for a devastavit committed by one of them, who might be insolvent, but without the participation of the other, could it for a moment be doubted that the sureties could maintain an action against both of them to recover money paid on such judgment ? Surely not; for both were under an implied obligation to indemnify the sureties for loss which they might sustain by the unfaithful administration of’either. But what is matter
This view is well sustained by authority. Boyd v. Boyd, 1 Watts, 365; Still's Appeal, 10 Penna. S. R. (Barr) 152; Green v. Harberry, 2 Brock. 403; Lidderdale v. Robinson, Id. 159; Babcock v. Hubbard, (cited in Boyd v. Boyd, supra,) 2 Conn. R. 536. And we are satisfied that it is sustained by reasons of justice and sound public policy, in promoting faithfulness in discharging the duties of these important trusts.
But, in addition to this, the evidence in this case very satisfactorily shows that Lawson was responsible for the assets of the estate. He is shown repeatedly to have admitted Ms liability for all the acts of his co-administrator; and that certainly is sufficient to charge him in the absence of any evidence tending to show that his statements were founded in mistake. It appears that he examined the papers and accounts pertaining to the estate, and was a lawyer of distinction. He must, therefore, have known the force of his statements, and it must be presumed that they were made on a state of facts that would justify the admission. It will not do to say that this was mere matter of opinion; for the admissions were made by one competent to form a correct opinion, and cognizant of the true state of facts; and the acknowledgment being positive and absolute, we are authorized to presume the existence of any state of facts in relation to the receipt and use of the assets of the estate, either by himself or by Tompkins with his privity and sanction, which would render him liable.
On both of these grounds we are satisfied that the court erred in dismissing the petition, and are of opinion that the account should have been ordered as prayed for.
The decree is, therefore, reversed, and the case remanded, and an account ordered to be taken in the court below, according to the prayer of the petition.
A petition for a reargument was filed, but overruled.