| Ill. | Jan 15, 1862
The first question presented by this record is, what effect was produced upon the rights and liabilities of the parties, by the execution of their additional bonds, by the administrators ? The seventy-ninth section, of the statute of wills, authorizes the security on an administrator’s or executor’s bond, to file his petition in writing, in the probate court, when he shall believe he is in danger of loss, from the misapplication or waste of the assets of the estate, for a rule on the executor or administrator to give a new bond, or counter security to save him free and harmless, from loss. And the court is authorized on a hearing to dismiss the application, or direct the executor or administrator, in his discretion, either to give good counter security to save such petitioner harmless, or to give a new bond in the like penalty as the first; and that such new bond shall have relation back to the time of granting letters testamentary or of administration, and shall be as effectual in every respect, as if the same had been executed before the letters were granted. And upon refusal or neglect to give bond de novo, or counter security, the letters before granted may be revoked. The eightieth section prescribes the form of the condition of such new bond.
In this case, the bonds of the fourth and thirtieth of July, 1842, given under the order of the probate court, on petitions filed for the purpose, conformed in every particular to the requirements of these sections, except that neither were in the same sum as the original. Then was this a fatal omission ? It is apparent that the court approving them, must have designed the two new bonds when taken together, to form the amount of the original bond. The sums named in the two, when added together, make that sum. If the two were designed to operate as, and to supersede the former bond, we can see no reason why it should not be held to be a substantial compliance with the law. It can make no difference whether it is written on one or two pieces of paper.- The condition of each is the same, and although the sureties became liable in different amounts, still the undertaking is the same. The law regards the substance and not the form of the agreement. If the fact that these bonds were in a less penalty than the one first given rendered them inoperative, they have never become binding, and are not capable of enforcement. But we are of the opinion that they were operative as statutory bonds.
The question then arises as to the effect produced upon the first bond given, by the execution of these. Was that bond abrogated, and the securities released, or did it remain in force ? The design of the General Assembly in adopting these provisions, manifestly was to provide the means of enabling a security on such an obligation, when apprehensive of loss, to release himself from liability, or to obtain counter security for his indemnity. Had the probate court ruled the administrators to give counter security, and they had complied with the order, the obligations would have been executed to the securities, and not to the People. They would have contained very different conditions, and upon a breach of the original bond, and damage resulting to the securities, they alone would have the right of recovery for their indemnity. Or had the administrators failed to give the new bonds when thus required, their letters would have been revoked, and the securities would have been released from all future liability. Then could it have been intended that the giving of such new bonds should have a less beneficial effect, by leaving them liable not only for the past but for the future acts of their principals? We think not.
The statute, in terms, renders the sureties on the new. bond liable for all of the acts of the administrators, from the date of the grant of their letters. This seems to clearly manifest an intention to release the securities on the original bond, by the execution of the new one, not only from subsequent, but from all past acts of their principals. And it was the evident design to render the first bond- as inoperative as though it had never been given, and to transfer the liability to the new securities. The securities on the bond first given are not liable, and should not have been made parties to this suit.
It is urged, that a bill in chancery will not lie in this case to declare and enforce the rights of the parties. But that the remedy is by an action at law on the bond. Whilst it may be true, that a settlement of the administrators’ accounts might be as well adjusted by a jury as a master in chancery, yet there is such a complication of interests, resulting from the death of one of the administrators, and several of the securities, whose representatives cannot be made parties to a joint action on these bonds, that a court of equity may, we have no doubt, entertain jurisdiction of the cause ana proceed to a final hearing and decree. In fact, it is difficult to perceive how a court of law could do complete justice, between all of these parties, without great delay and vexatious litigation.
The next question presented is, whether the bill was defective for the want of proper parties. We think it was. The representatives of the deceased securities have a direct interest in being heard in the adjustment of the administrators’ accounts, as they would be liable to contribute in their representative character, for their proportion of any sum found remaining in the hands of the administrators, or misapplied or wasted by them. With only a portion of the parties to the bonds, or their representatives before the court, a decree doing full and complete justice to the several parties could not be rendered. The bill was defective in not making the representatives of Swallow, Seeley and Gregory, parties. Also, in omitting Holliday, a security to the second bond. For the want of these parties, the defendants’ demurrer should have been sustained. The sixty-ninth section of the statute of wills, in giving an action on an administrator’s or executor’s bond, against all or any of the obligors, only has reference to actions at law. That section was not designed to change the practice in suits in equity. And the last clause of that section, making certified copies of such bonds evidence, was only designed to change a rule of evidence, and not the practice in courts of equity. The decree is therefore affirmed.
Decree affirmed.