Newton v. Newton

53 N.H. 537 | N.H. | 1873

Hibbard, J.

It was a rule of the common law, that an executor was not liable for waste or other misconduct on the part of a co-executor. Toller on Executors 472. The reason for this was said to be that the misplaced confidence of the testator in one of his executors ought not to be allowed to operate to the prejudice of another. Whether this rule ought ever to have been extended beyond the reason for it, and applied also to administrators, is a question which does not arise on tlie facts of this case. It might have arisen had these parties given separate bonds, but they gave a joint and several bond. Where joint executors execute a joint bond for faithful administration, both are responsible for all the acts of either during the continuance of the joint executorship. 2 Redf. on Wills 82; Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 Pick. 535; Ames v. Armstrong, 106 Mass. 15. This must be equally so in the case of joint administrators. In Sparhawk v. Administrators of Buell, 9 Vt. 41, Phelps, J., dissenting, contended that executors giving a joint bond were jointly liable only in an action upon the bond; but this view was not sustained by the majority of the court.

It has been suggested by the appellant’s counsel that she can only be held liable as one of the sureties of the appellee on account of waste committed by him, but by the bond these parties bound themselves as principals, and the other signers bound themselves as sureties, that the estate should be faithfully administered; and according to the authority of Brazer v. Clark and Towne v. Ammidown, before cited, she incurred a liability as principal upon the bond and no other, and to hold her now liable as surety “ would be changing the character of her engagement.”

The case does not present any question relating to the rights or liabilities of these parties as between themselves, but if the appellant shall be compelled to account to the estate for waste committed by the appellee, without any fault or neglect on her part, she must be entitled to recover from him the amount thus paid by her. As it was the duty of the judge of probate to charge both administrators with all waste committed by either, it was unnecessary for him to determine whether the waste was occasioned by the fault of both of them, or of one only.

The result we have reached will do justice to the sureties if the appellee is insolvent. We think they might reasonably expect to rely on both of the principals, in case of default on the part of either.

Decree of the judge of prolate affirmed.