| Mo. | Oct 15, 1871
delivered the opinion of the court.
This was an action against the defendant as surety on an administrator’s bond. From the record it appears that in March, 1867, George R. French was appointed public administrator of Washington county; that he executed his bond in the sum of $10,000, in the usual form, with defendant as one of the sureties. In September of the same year, as public administrator, he took charge of the estate of Margaret Ann Wishart, and proceeded to administer upon it. French died in 1868 without having finished the administration of Wfshart’s estate, and 'Shields was elected his successor and was ordered to take charge of the estate. Letters of administration were also taken out on French’s estate, and his administrators were ordered to turn over everything belonging to the Wishart estate that had come to their hands, to Shields.
The Circuit Court sustained a demurrer to the petition, but the ruling of the Circuit Court was reversed in the District Court. The essential points relied on to sustain the demurrer are, that it is not averred that French or his legal representatives made final settlement of the Wishart estate before the commencement of the suit; that it is not stated that the County Court made final settlement of the estate, or that they made an order on French’s legal representatives to pay over the property on final settlement with them.
The statute provides that if any executor or administrator die, resign, or his letters be revoked, he or his legal representatives shall account for, pay and deliver to his successor, or to the surviving or remaining executor or administrator, all money, real and personal property of every kind, and all rights, credits, deeds, evidences of debt, and such papers of every kind of the deceased, at such times and in such manner, as the court shall order on final settlement with such executor or administrator or his legal representatives. And it is also provided that the succeeding administrator, or the remaining executor or administrator, may proceed at law against the delinquent and his sureties, or either of them, or against any other person possessed of any part of the estate. (Wagn. Stat. 77, §§> 47-8.)
The only question material to be considered- is whether an action on the bond can be maintained, under the circumstances of this case, before final settlement made by the County Court. This is not a new question in this court. It has been heretofore presented and decided in the affirmative.’ The case of The State, to use of Darland, Adm’r, etc., v. Porter et al., 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, arose under the statutes of 1835, but the provisions of the law then were similar to those now in force. The case is therefore direct authority. It was there'held that th'e section which declared that whenever an order of payment was made on final settlement and
Mr. Williams states the proposition of law, that a neglect or refusal to distribute until a previous decree or sentence, is not a breach within the meaning of the condition that the administrator should well and truly administer according to law. But he adds that when the administrator applies and converts to his own use the effects of the intestate, so that these effects are lost to the estate, that will amount to a breach of the condition of the bond and will authorize an action on the bond at the instance of those interested. (1 Wms. Ex’rs, 445.) In the present case aeon-version and appropriation to his own use by French was expressly alleged and assigned as a breach of the condition of the bond. If the facts stated were true, the condition of the bond was undoubtedly broken, and a right of action accrued against the sureties. The defendant, therefore, should have made his defense by answer and not by demurrer.
The judgment of the District Court will be affirmed.