23 Miss. 361 | Miss. | 1852
delivered the opinion of the court.
The plaintiffs in error, claiming to be the residuary legatees of the last will and testament of George McCrakin, deceased, brought this suit against the defendants, who are executors, &c. of Walter Irvine, deceased, for the purpose of charging the estate of Irvine, on account of an alleged liability incurred by Irvine, as surety on the bonds of Thomas Munce, who qualified as the executor, &c. of McCrakin. The bond was executed in 1819. The breach alleged is, that Munce wasted
To this declaration a demurrer was filed, which was sustained by the court below. Eleven causes of demurrer were assigned, but we do not deem it necessary to notice any but the'ninth and tenth, which are substantially the same, and are to the effect, that the plaintiffs never obtained any order or decree of the probate court against Munce, in his lifetime, or his personal representatives since his death, directing the payment of the residuum of McCrakin’s estate to them, nor had plaintiffs obtained any judgment against Munce in his lifetime, or his personal representatives since his death, for a devastavit in the administration of McCrakin’s estate.
It is admitted by the counsel for the plaintiffs in error, that it is a rule of the common law, that no action for a devastavit could be maintained against an executor to charge him de bonis propriis, until judgment against him de bonis testatoris, and a rfeturn of nulla bona on that judgment; but it is insisted, that this judgment de bonis testatoris, and the return of nulla bona, were only designed for the purposes of evidence, absolutely necessary and indispensable, if in the reach of the party, but which the court might dispense with, if impossible to be obtained, as it was an action against the executor of an executor who died before a judgment could Be rendered against him ■ de bonis testatoris. In actions of this kind, it is alleged that the precedent judgment de bonis testatoris, and a return of nulla bona, were dispensed with, and evidence aliunde of the devastavit admitted. 1 Saund. R. 219 d, 219 e, 219 /. Giving full force to the rule and to the exception as contended for by the plaintiffs in error, let us see whether this
It must be remembered, that it is an action by parties claiming as residuary legatees, against the executors of a surety, for the purpose of charging his estate with an alleged devasta-vit, without any judgment or decree ever having been rendered against the principal obligor, or his personal representatives, for the alleged residuum.
The first point to be ascertained in an inquiry of this kind, is the period of time at which the liability of the surety upon this bond becomes fixed. The undertaking upon the part of the surety being entirely conditional, of course, until there has been default on the part of the principal obligor, no action can be maintained against the surety. Upon looking to the condition of the bond, we find that it contains the following stipulations, to wit: That the executor shall make and return an inventory of the goods and chattels, &c., that he shall well and truly administer the same according to law, make a just and true account of his actings and doings when required by the probate court, and pay and deliver all legacies contained and specified in the will, as far as the goods and chattels, &c. will extend, according to the value thereof, and as the law shall charge them. Now, in the case of a residuary legacy, to what extent does the law charge an executor? To pay to the residuary legatee all the balance of the estate, which may remain in his hands after payment of all the debts of the testator, of all specific legacies, and all necessary and proper charges incurred in executing the trusts of the will. In what tribunal, and in what manner can this balance be ascertained ? The constitution has provided, that the “ probate court shall have full jurisdiction in all matters testamentary and of administration,” &c.; and this court has repeatedly held, that this jurisdiction is exclusive in the probate court, and that an executor or administrator is not liable to a suit in chancery for an account, but that the power to compel the same belongs to the probate court, which has ample and exclusive jurisdiction for that purpose.
Until the final settlement of an executor’s account, of course
In England it has been held, that a neglect or refusal of the administrator to distribute the surplus or residue of the effects of the intestate among the next of kin, according to the statute of distributions, is not a breach of the condition of the bond, without the previous decree or sentence of the court. 1 Will. on Ex’rs, 334, 335; 8 Barn. & Cress. 151. Why is this rule so established? Because, until the decree of the court for distribution, the administrator could not know who were entitled as next of kin to demand the property. Neither is an administrator liable, at the suit of a creditor, until a judgment against him de bonis testatoris. Why ? Because the law' will not compel him to pay a debt, until the party claiming it has established its validity in a court of law, and the liability of the executor to pay it out of the effects of the deceased.
In the case of Phipps v. Judge of Probate, 5 How. R. 68, this court said, “ The receipt of assets, and the wasting of them, are conditions precedent to the individual liability of an administrator. If he were living, and refused to pay or distribute according to the decree of the probate court, the plaintiff’s remedy would be on his bond. Of course his estate cannot be made liable, except in the same way. The object
Has the death of Munce made any difference in the law in this particular? According to the opinion of the court, in the :case cited from 5 How. R. 68, it has not.
The statute of this state has provided, that executors and •administrators shall be liable to be sued in any court of law or equity, as the case may require, in any action which might •have been maintained against the deceased. Hutch. Code, 670, sec. 111. It would seem to follow very clearly, from this .provision, that inasmuch as Munce would have been liable in his lifetime to a suit in the probate court, for an account and payment by the residuary legatee of McCrakin’s estate, no rule of law would have prevented such legatee from bringing a similar suit against the personal representatives of Munce, and attaining a decree for any balance due him in the hands .of Munce. If no person had administered upon the estate of Munce, then, as was held in the case of McRae v. Walker, 4 How. R. 455, a court of chancery would probably have taken jurisdiction, and, in a suit against the surety, might have taken the account and granted relief. See also 6 Rand. R. 49; 5 Ib. 51.
After this examination of the cases cited by counsel for the plaintiff in error, and of the reasons given by them, why an exception should be made in this case, in requiring a previous settlement of the accounts of Munce, as executor, and a decree in favor of the plaintiffs for the balance, before suit against