49 Mo. 428 | Mo. | 1872
delivered the opinion of the court.
The question here relates to the liability of sureties on an administrator’s bond. It seems that Orrick was appointed administrator on the estate of Mark D. Yahey, deceased, and that he duly qualified and gave bond. Yahey had been in partnership with one Jennings, and the latter neglecting to administer on the partnership effects as provided for by statute, Orrick also took out letters of administration on the partnership estate, and gave the additional bond required. The latter bond was only for $1,000, and was grossly inadequate in amount, and the Probate Court was palpably remiss in its duty in not exacting a larger one.' Upon a final settlement of the partnership effects, it wa3 found that there was due to the partnership estate $2,472 96, which Orrick had used and converted to his private purposes, and that he was insolvent. His sureties on the partnership bond paid on his account $1,000, the penalty of the bond, and there was then left a balance of $1,472.96 due the individual estate, which he was ordered to pay over. He had used the money before the settlement, and he never held it as individual administrator. Upon a final settlement of the private estate of Yaliey, an attempt was made to charge him with the deficit due and owing to the partnership estate. If he was so chargeable, then his sureties on the individual estate would be liable. This constitutes the only question in the case.
To show that the administrator of the private estate is liable for the partnership effects, the statute is cited (Wagn. Stat. 78, §§ 53-4), which provides that the administrator on the estate of the deceased member of the co-partnership shall include in the inventory, which he is required by law to return to the court, the gross amount of the partnership estate as inventoried and appraised, but that h¿ shall be charged with an amount equal only to the deceased’s proportional part of the co-partnership interest. And if the surviving partner shall not have administered on the partnership estate at the time the administrator of the estate of the deceased partner shall proceed to take his inven- . tory, it is then the duty of the administrator to include in the
It is obvious that the inventory and appraisement, provided for in sections 53 and 54, are for the purpose of ascertaining the interest of the deceased member, but they do not authorize the administrator on the personal assets to take charge of the partnership property or exercise any control over the same. (Bredow v. The Mut. Sav. Inst., 28 Mo. 185.) In all instances the surviving partner has the choice to administer on the partnership effects if he sees proper to do so; but if he neglects, then the individual administrator may take out letters of administration on the partnership estate. But he is required to give a new bond, and he acts in a new, separate and distinct capacity. The sureties on the latter bond are responsible for the disposition of the partnership assets, and the sureties on the first bond are held for any malversation as to the individual estate.
Had there been two administrators in this case, one on the separate estate and another on the partnership, it will not be pretended that the individual administrator would be liable for the malfeasance or defalcation of the partnership administrator. Because Orrick acted in a dual or two-fold character, the case is not altered so far as the sureties are concerned. One set of bondsmen agreed that they would be responsible for his faithful performance of duty in the administration of one estate, and the other set held themselves liable for his acts and delinquencies in the other. The liability of the surety is never extended beyond the plain terms of his contract. His undertaking is extended to whatever is comprehended within the scope and limits of his engagements, and he is bound by the conditions of his obliga
As the money came into Orrick’s hands as partnership assets, and was converted by him while acting as administrator on the partnership property, the sureties on the bond for the partnership administration are alone liable. That loss occurs by reason of the inadequacy of the bond, is the fault of the court exercising probate jurisdiction; but the sureties on the first bond, who never became responsible for the administration of the partnership effects, cannot be made to suffer thereby.
Judgment affirmed.
