Parmlee v. Brashear

11 La. 329 | La. | 1837

Bullard, J,,

delivered the opinion of the court.

This is an action against the surety, on the bond of the curator of a vacant estate, in which the plaintiffs ask to recover the amount of their claim against the estate, on the allegation, that the curator had administered the estate in an illegal manner, and had never paid over to the petitioners the amount of this demand, though ordered to do so by a judgment of the Court of Probates, and that the curator had collected and converted to his use, the monies of the estate, which, he alleges, is perfectly solvent.

When a curator’s bond is forfeited by a failure to comply with its conditions, and such failure and breach of the condition of the bond are alleged, a right of action accrues against the surety,which authorizes the party injured to maintain suit on the bond in the courts of general jurisdiction.

The defendant, by way of exception, alleges, that the plaintiffs cannot maintain the present action, because they cannot have any recourse against him as the surety of the curator, until the estate is finally settled, and a definitive-tableau of distribution filed. That the plaintiffs have no right of action, until the estate be settled contradictorily with the curator in order to ascertain the situation of the same, and that it was the duty of the plaintiffs, before bringing their action, to cause a liquidation of the estate to be made before the Court of Probates, as the District Court has no power to order one. He further denies the allegations in the petition, and that the estate is fully sufficient to pay the debts, and that the curator has not been mal-administered.

This exception was sustained, it being the opinion of the district judge the suit was premature, and that the plaintiff was bound to pursue the estate by a different process.

The only question, therefore, which this case presents, is, whether this dilatory exception ought to have been sustained. This question involves the inquiry, whether a breach of the conditions of the bond has been properly assigned ; for, it will be admitted on all hands, that if the bond has been forfeited by a failure to comply with its conditions, and such failure is alleged in this case, a right of action against the surety has accrued, and the plaintiff is not bound to pursue his remedy by any circuity of action.

The conditions of the bond were, that the curator should well and truly administer, and execute, and perform the duties required of him by law, as curatorj and that he should account for and pay over to the heirs, or their legal representatives, or to such persons as shall be entitled to the same wben thereto legally required, all such sums of money as siiaii come into his hands as curator.

So where a ' tableau of distri-button has been filed, and the r!zed°and dh-ee°t-ed to pay accord-in£jy jj he neglects to pay ly requh-ethfhe onoe^hís'rane1 dy on the bond,

The, breach of these conditions is alledged to be, that although the plaintiffs had a judgment, and the order of the Probate Court for the payment of their claim for three hundred and sixty-seven dollars ; and although he had sufficient funds in his hands for the payment of the same, yet he has never paid their claim, but has converted the money to his own use.

We are, by no means, prepared to assent to the broad proposition asserted in the defendant’s exception, that no recourse can be had against him upon the bond, .until the estate is definitively settled by tiling a final tableau of distribution, and liquidated contradictorily with the curator, in the Probate Court. Cases may be supposed, in which the curator, after getting the estate in his hands, wholly neglects to pursue the steps required by law for his administration, or absconds with the proceeds of the estate. It might be wholly impossible f°r a creditor to proceed contradictorily with him in the liquidation of the estate — nenio precisé cogitar ad factum. It was it for the purpose of giving to parties interested other means oi securing and enforcing their rights, that bonds with sure-jjes are required in the administration of estates. After a ^ tableau of distribution has been filed, and the curator has been authorized and directed to pay accordingly, if he ne^ects to Pay> when thus legally required, it appears to us that the creditor has at once his remedy upon the bond.

In the case before the court, the plaintiff exhibits a judgment against the estate, liquidating their claim, and two tableaus of distribution, presented by the curator himself, in which the plaintiffs are represented as creditors of the estate, with orders of the Court of Probates for the payment accordingly, and yet, it is alleged, thaqhejias not paid.

Assuming, therefore, as true, what is’alleged in the plaintiffs’ petition, we think they have averred a breach of the conditions of the bond, which entitles their recourse upon it, against the surety, in courts of ordinary jurisdiction, and that the exception ought not to have been sustained. But as the court below does not appear to have itried the case upon its merits, and to have inquired into the amount to which the plaintiffs might be entitled, it being admitted that a small part was paid, the case must be remanded.

It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be reversed; that the exception be overruled, and the case remanded to the District Court for further proceedings, according to law, the appéllant paying the costs of the appeal.