80 Kan. 549 | Kan. | 1909
Rotzell died testate, and Markart was appointed administrator with the will annexed. Toffler became surety on the administration bond. Mark-art died without having completed the settlement of Rotzell’s estate. Kesinger was then appointed administrator with the will annexed of the Rotzell estate, and Ackenhausen was appointed administrator of Mark-art’s estate. Kesinger, as administrator, sued Ackenhausen, as administrator, in the district court for money collected by Markart belonging to Rotzell’s estate, and judgment was rendered in Kesinger’s favor. The judgment was presented to the probate court and duly allowed and classified as a claim against Markart’s estate. No probate court order upon Ackenhausen to pay the claim was made, and it was not paid. Kesinger,as administrator, then sued Toffler, the surety on Mark-art’s bond, for the amount of the judgment, and recovered. Toffler prosecutes error, and the sole question is whether the bond was broken upon non-payment of the judgment although the probate'court had issued no order upon Ackenhausen to pay it.
Markart’s death ended his right to the unadministered assets of the Rotzell estate, and none of them passed to his estate or to its administrator. Upon Kesinger’s appointment and qualification he became by law entitled to all of/them, including any balance which might be due from Markart. It required no order of court to vest title and right of possession in Kesinger, and just as soon as the balance due from Markart was finally adjudicated the law made it immediately due and payable without further ceremony. Ackenhausen bore no official relation whatever to the Rotzell estate, and had no concern with it beyond securing for Mark-art’s estate all allowances to which Markart would have been entitled and seeing that the true balance was stated. When an executor or administrator resigns or
All that is .required in cases of this character 4s a final judgment establishing the liability of the principal in the bond for assets received, unadministered and unaccounted for. An order in the nature of an order
“Where upon the settlement of the accounts of an administrator or executor, who has resigned or been removed, the amount due from him to the estate has been ascertained and determined by the probate court, it is not error in the court to order its payment to his successor in the administration of the estate. It is not an order of distribution, but a judgment in favor of the estate against him upon the settlement of his accounts for assets received and unadministered, and to which, under section 6020, Revised Statutes, the succeeding administrator is entitled.” (Page 640.)
The principle is illustrated in the case of Nevitt v. Woodburn, 160 Ill. 203. At the time the liability of a removed executor was finally established an administrator de bonis non had not been appointed. In affirming a judgment against the sureties on the bond the court said:
“It is -said that the judgment against Ege for the amount due from him on his final report did not order such amount to be paid to the administrator de bonis non. We do not regard this as material. The administrator de bonis non had not been appointed when the judgment was rendered. It was found that the amount which he owed was due to the estate of the deceased, and this was sufficient.” (Page 213.)
If it should be admitted that if Markart’s accounts had been adjusted in the probate court and the amount of his indebtedness had been ascertained there the adjudication of liability by that court would not have
The surety relies upon the two cases of Stratton v. McCandless, 21 Kan. 296, and Hudson v. Barratt, 62 Kan. 137, but as shown in the case of Surety Co. v. Piatt, 67 Kan. 294, those.decisions merely go to the-extent of holding that where an estate is unsettled and the probate court still has jurisdiction of the administrator himself his liability ought to be determined in. that court before action is taken against his sureties.
The judgment of the district court is affirmed.