State ex rel. Kelley v. Thornton

| Mo. | Mar 15, 1874

Adams, Judge,

delivered the opinion of the court.

This was an action by the relators as distributees of the estate of Michael Nolan, deceased, against the defendant as surety of Christopher J. Caffrey on his bond as administrator.

The record shows that on the 10th day of December, 1864, Michael Nolan died intestate, leaving the relators as his only heirs at law and distributees of his estate. That on the 13th day of December, 1864, the said Caffrey was appointed administrator of his estate by the St. Louis Probate Court and filed his bond in the usual form with the defendant as one of his sureties. On the 28th day of March, 1868, Caffrey made his annual settlement, from which it appeared that there was in his hands, as administrator, the sum of twenty-six hundred and fifty-five 84-100 dollars. Caffrey then left the State; and at the December Term, 1869, the Probate Court revoked his letters. No administrator de bonis non was appointed, and no further orders or proceedings were had in the Probate Court, either in the way of an order of distribution or of any kind.

On the 19th day of May, 1871, the relators commenced this action upon the administrator’s bond, alleging as a breach, that the administrator failed and refused to pay the sum, shown by said settlement to be in his hands, to the relators. The petition alleges the foregoing facts, and also alleges, that more than two years had elapsed before the commencement of the suit and after the granting of the letters of administration ; and that no debts or demands exist against the estate. The answer is a general denial. At the trial, the facts as alleged were established by the evidence, and the court gave judgment for the plaintiff. The defendant moved in arrest, which being overruled, lie appealed to tlie General Term, where the judgment at Special Term was affirmed, and he has brought the case here by writ of error.

1. The first point presented for our consideration is, that the relators cannot maintain this action, because their interest is not joint, but several, in the common fund, and therefore, each must bring a separate action. \

There has been no order of distribution and no separation of their respective interests in the joint fund. They therefore have a common interest in the subject matter of the suit, and it was proper they should have been joined as relators to prevent a multiplicity of suits.' The State is the plaintiff, and when the fund is collected, the relators can divide it among themselves according to their respective rights therein. Whether, after an order of distribution, a several or joiiit suit might be maintained, it is unnecessary to decide. As there was no such order, the distributees could certainly join in the suit as relators. (See 2 Wagn. Stat., 1000, §§ 1, 6.)

2. The only remaining point raised by the defendant’s counsel is, that there had been no final settlement and no administrator de bonis non appointed, and therefore no action will lie on the administrator’s bond. This objection is not well taken. The petition and proof show that there were’ no debts or demands against the estate, and therefore there was no necessity for the appointment of an administrator de bonis non. Distributees may maintain an action on an administrator’s bond before final settlement. The facts of this case show a breach of the bond, and that the distributees are the only parties entitled to the fund in the hands of the administrator; and they ai'e therefore the only parties who can maintain the action as relators. (State ex rel., Adams vs. Campbell, 10 Mo., 726; State ex rel., Collins vs. Stephens, 12 Mo., 181; State ex rel., Midgett vs. Matson, 44 Mo., 305" court="Mo." date_filed="1869-08-15" href="https://app.midpage.ai/document/state-ex-rel-midgett-v-matson-8002627?utm_source=webapp" opinion_id="8002627">44 Mo., 305; State ex rel., Darland vs. Porter, 9 Mo., 356" court="Mo." date_filed="1845-07-15" href="https://app.midpage.ai/document/berry-v-st-francois-county-6611465?utm_source=webapp" opinion_id="6611465">9 Mo., 356.)

Judgment affirmed;

Judge Wagner absent. The other judges concur.