Thayer v. Clark

48 Barb. 243 | N.Y. Sup. Ct. | 1867

By the Court, Ingraham, J.

The plaintiff brought suits against Allen and Phelps, as administrators, &c. of Nahum Allen, deceased, for services rendered to the intestate, and recovered judgments against them. He then applied to the surrogate for an order that the administrators pay such judgments out of the estate of the intestate, and an order was made by the surrogate, directing the payment by the administrators within five days. The payment was not made, and the decree was docketed in the common pleas, and an execution issued from that court, against the administrators, for the amount due. This not being paid, an application was made to the surrogate, and the surrogate assigned to the plaintiff the bond given by the administrators. This action was then brought on the bond, against the sureties.

The defendant contends that these proceedings are irregular, and that the plaintiff is only entitled to payment on a general accounting ; and then to share equally with the other creditors, on a final distribution. He also claimed, before the referee that he was not bound by the judgments, or the decree of the surrogate ordering the money paid, and that he had a right to make a defense to the recovery by the plaintiff, by showing that the decree of the surrogate was erroneous. We think, upon both grounds, the appellant was in error.

The decree, of the surrogate was conclusive upon the administrators. If they had any defense, it should have been made in that proceeding. It established the indebtedness of the estate to the plaintiff. When that was established by the decree of a competent tribunal, the administrators were bound to pay it. On their neglect to do so, the bond which they gave with sureties, as administrators, was forfeited. By that bond the sureties bound themselves for the faithful performance by the administrators of their trusts, and for obedience to all orders of the surrogate touching the administration of the estate. The sureties have no right, under such a bond, to go back of the decree of the surrogate and show that such decree was erroneous. It is conclusive, as to the indebtedness of the estate ; and as to the obligation of the administrators to make the payment.

Nor can there be any doubt as to the power of the surrogate to decree payment of a debt, against an administrator, after the lapse of six months from the granting of 'letters of administration. (3 B. S. 5th ed. p. 204.) The intent of this provision. was to allow a payment of a debt due from an estate where the surrogate was satisfied that there were assets in the hands of the administrator, sufficient to pay all the debts, after six months (the time for creditors to present their claims.) It was very easy to ascertain whether the assets were sufficient for that purpose, and if so, to order payment of the debt due to any creditor.

By the act passed in 1830, (3 B. S. 204, § 19,) the surrogate was authorized to cause the bond to be prosecuted and the money collected on such bond applied to the satisfaction of the decree.. This provision, however, contemplates the prosecution of the bond by the surrogate, and not its assignment to the creditor. That is authorized by the 63d,' 64th and 65th sections of the act of 1837. (Laws of 1847, oh. 460.) It was said on the argument, that this only applied to a general accounting ; but such is not the evident intent of the statute. It applies to any decree made for the payment of money by an administrator. It requires a certificate of the amount directed to be paid, and the person to whom it is ordered to be paid, and provides for a judgment in favor of such person, and an assignment of the bond to the creditor named, to be prosecuted for his sole use. These were general provisions, applicable to all cases before the surrogate where money was ordered to be paid to creditors, arid not merely to a general accounting of the administrator, in regard to the estate. The judgment should be affirmed.

[New York General Term, January 7, 1867.

Leonard, Clerke and Ingraham, Justices.]