McAllister v. Estate of Irwin

31 Colo. 254 | Colo. | 1903

Mr. Justice Gabbert

delivered the opinion of the court.

Counsel for the defendant in error contend that no claim can be allowed against the estate arising out of the obligation of the deceased as cosurety until a court of equity has determined the amount due from the estate, and then only for one-third of the amount paid by plaintiff in error, unless it be established that the other surety, Morgan H. Williams, is insolvent. ■The county court is vested with authority to. hear and determine claims against the estate of deceased persons. The one of several sureties' on an obligation who discharges the debt may. enforce contribution from the estate of a deceased cosurety.—McKenna v. George, 2 Richardson’s Eq. (S. C.) 15.

It does not appear that Morgan H. Williams, one of the sureties on the bond, is insolvent, or that any attempt has been made to enforce contribution from him. The one of several sureties discharging an obligation may enforce contribution from his cosureties so as to equalize the loss. He can recover from each of his co-sureties only the aliquot portion of the whole amount paid calculated upon the basis of the number .of sureties, unless it appears that some of them are insolvent, in which event he may recover from each of the solvent ones the moiety of the whole debt, having regard only to the number solvent.—Mills v. Hyde, 19 Vt. 59; Henderson v. McDuffee, 5 N. H. 38.

According to the statement, of facts, plaintiff was entitled to an allowance against the estate of deceased equal to one-third of the amount paid in satisfying the judgment, costs, and expenses incurred.

The judgment of the county court is reversed.'

Judgment reversed.