| Ala. | Jan 15, 1843
This bill is filed by the surety of an administrator, alledging that his principal, in his settlement with the County Court, being insolvent, and knowing that the money would have to be paid by the surety, fraudulently omitted to charge against the estate monies that he had paid out of the assets of the estate, for the board, schooling and clothing of the legatees, and also debited himself with money which had been previously accounted for, amounting to two hundred and fifty dollars.
There is some obscurity in these allegations, as they appear to assume that the administrator may subject the estate in his hands to a charge, which it is very certain he cannot do. It further appears that the administrator had married the widow of the deceased, and if the board of her infant children was intended as a gratuity to them, he was not only not under any obligation to charge them, but it would have been improper to do so.
Independent, however, of considerations of this kind, the principle which must govern this case, was determined in the - case of Townsend and Gordon v. Everett, at the present term, in which we held that a surety was bound by those acts of his
. In that case, Gordon was the surety of Townsend, as treasurer of Mobile county, and in that capacity Townsend made a report to his successor, as by law he was required to do, showing the amount of money in his hands as treasurer, which we •held evidence of that fact, in an action against the surety on his bond.
. So .in this case, it was the duty of the administrator to settle his accounts with the Orphans’ Court. In the performance of this duty a sum of money is ascertained to be due from him to-the estate, and as he is concluded by this judgment, so must his surety be also. But this is something more than a mere admission of the principal-, in the performance of a duty cast on him by law; it is the judgment of a Court, rendered on am-pie public notice, in which the plaintiff in error had a deep interest, as his principal was insolvent; it was therefore his duty to attend the settlement and protect his rights — his failure to do so, can be considered in no other light than gross laches.
It is further alledged that this settlement was fraudulently made. The fraud is supposed to consist in the withholding by the administrator, of claims against the estate, which he ought to have, or might have, preferred against it. It is not alledged that the heirs colluded with the administrator to produce this result, or that they were privy to it; and without their agency, consent, or privity, we are unable to perceive how the settlement could be fraudulent. Conceding that the -amount for which judgment was rendered could have been reduced by evidence of payments, in the power of the administrator to procure, at the settlement of the estate, if the omission was not caused by the act of the legatees, or those interested in the estate, the administrator is forever concluded by the judgment: and if he is, the surety who is bound for his acts must be also. It would be productive of the greatest delay and injury, if, after the settlement of an estate, the surety could have the whole matter re-examined in Chancery, on the ground that the administrator had omitted, at the proper time, to bring forward all' his charges against the estate; for this is the whole amount of the bill when properly understood. Calling the settlement-
Our conclusion therefore is, that although a fraudulent settlement of an estate in the Orphans’ Court, with intent to prejudice the surety, might be overhauled by him in Chancery, the allegations of the bill do not make out such a case — and that the mere fact that the administrator omitted to prefer charges against the estate which he might have made, will not authorize ihe surety to go into Chancery for a resettlement, although the administrator may be insolvent.
Whether the bill' might not have been entertained, if the surety had shown that the necessary advertisement for a settlement of the estate had not been made, or if he had shown a sufficient excuse for not being present according to the notice, it is not necessary now to determine, as the bill contains no such allegation.
There being no error in the decree of the Chancellor it must be affirmed.