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THE

Northeastern Reporter.

VOLUME XXII.

(119 Ind. 503)

STATE ex rel. MCCLAMROCK v. GREGORY | the decedent in Davis county, Mo., by the

et al.

(Supreme Court of Indiana. June 27, 1889.)

ADMINISTRATORS-EXECUTION OF BOND.

1. Defendants were requested by an administrator to become sureties on his bond, jointly with his brothers. They found at the clerk's office a bond containing the names of themselves and the brothers as sureties, signed the bond, and left it with the clerk, without inquiry or explanation, expecting that the brothers would also sign it. The bond was, approved by the clerk without further signatures, and defendants, after learning this fact, made no effort to be released. Held, that they had executed the bond.

2. Where an ancillary administrator fails to account for money of the estate which, before his appointment, he had collected as attorney for the principal administrator, his sureties, when sued therefor, may show in defense that the administrator was insolvent when appointed.

Appeal from circuit court, Warren county; JOHN M. LA RUE, Judge..

Action by the state on the relation of James McClamrock, administrator de bonis non of Isaac Croy, deceased, against James Gregory and B. R. Gregory, sureties on the bond of Levin T. Miller, former administrator of said Croy. Judgment for defendants. Plaintiff appeals.

McCabe & McCabe, for appellant. Nebeker & Dochterman, for appellees.

BERKSHIRE, J. This case has been in this court once before, but the opinion throws no light upon the questions now involved. 88 Ind. 110. The action is brought upon an administrator's bond, and the complaint is made up of two paragraphs. The first paragraph alleges that one Levin T. Miller was appointed administrator of the estate of Isaac Croy by the Warren circuit court, and that the appellees were the sureties on his bond; that as such administrator the said Miller collected large sums of money belonging to his trust, for which he failed to account, but converted the same to his own use, etc. The second paragraph alleges that before the appointment of the said Miller as administrator he collected a large sum of money as the agent of one Andrew Croy, who had been appointed administrator of the estate left by v.22N.E.no.1-1

probate court of that county, for which he failed to account, but converted the same to his own use, never having inventoried or charged himself with the same. It is further alleged that there was other indebtedness in the county of Warren amounting to $1,000, which, as such administrator, the said Miller failed to collect; whereby the estate was damaged in the sum of $1,000. Whether the conversion took place before or after Miller became administrator does not appear. The case was put at issue and tried by the court without the intervention of a jury, and at the request of the parties a special finding was made, and judgment given for the appellees. The appellees insist that the judgment shall be affirmed; therefore we are not called upon to decide any questions presented by the cross-error assigned, except so far as they may be involved in the consideration of the errors assigned by the appellant. Thomas v. Simmons, 103 Ind. 558, 2 N. E. Rep. 203, and 3 N. E. Rep. 381. The substantial facts stated in the special finding are as follows: Isaac Croy, who in his life-time was somewhat of a cosmopolite, died in the state of Iowa, intestate, July 26, 1876. At the time of his death he had property in Missouri, in Iowa, and in Montgomery and Warren counties, Indiana. On the 8th day of September, 1876, Andrew Croy was, by the probate court of Davis county, Mo., appointed administrator of the decedent's estate, and after his appointment he made Levin T. Miller of Warren county, Ind., his attorney in fact, to collect certain moneys due the decedent from persons living in the said county of Warren; and by virtue of said authority the said Miller collected the sum of $1,500, for which he never accounted to the said administrator, nor to any one else. That on the 4th day of February, 1878, the said Levin T. Miller was by the clerk of the said Warren circuit court appointed administrator of the estate of the said decedent, Isaac Croy, and on the 4th day of April, 1878, the Warren circuit court confirmed the said appointment. That on the 1st day of

July, 1880, the court removed Miller from | sion that the appellees did not execute the his said trust, and the relator became admin- bond. The facts, briefly stated, are, as we istrator de bonis non of the said estate. That have seen, that the appellees were requested during the time Miller was acting in his by Levin T. Miller to execute a bond as his fiduciary capacity he received of the assets of sureties, jointly with Walter B. and James C. said estate the sum of $577.70, and paid out Miller, and consented so to do, and afterwards the sum of $588.10. That after the said went to the clerk's office of the Warren cirMiller became administrator he failed to in-cuit court, and there found the proposed bond ventory the said $1,500, or any part of it, in the custody of the clerk, whose official duty which he had collected as the agent of the it was to accept and approve the bond, filled Missouri administrator, and failed to charge out, and containing the names of the princihimself therewith in any way, notwithstand-pal, Levin T. Miller, Walter B. and James C. ing he had the same under his control. At Miller, together with the names of the appelthe time of Miller's appointment as adminis- lees, within the body thereof as obligors; and trator, he gave the bond in suit, which we will without any inquiries of the clerk, and makset out: "Know all men that we, Levin T. ing no explanation to him, they executed the Miller, Walter B. Miller, James C. Miller, bond with the expectation that the Millers John Gregory, and Benjamin R. Gregory, are would also execute it, and left it with the bound unto the state of Indiana in the penal clerk. The arrangement, as made when the sum of four thousand dollars, for the pay-appellees consented to execute the bond, was ment of which we jointly and severally bind coupled with no condition that their liability ourselves, our heirs, executors, and adminis- thereon was to depend upon the execution of trators. Sealed and dated this 4th day of the bond by Walter B. and James C. Miller. February, 1888. The condition of the above obligation is that the said Levin T. Miller shall faithfully discharge the duties of his trust as administrator of the estate of Isaac Croy, deceased, according to law; then the above obligation to be void, else to remain in full force. LEVIN T. MILLER. J. GREGORY. B. R. GREGORY." After the signatures is the following indorsement on the bond: "Approved by me this 4th day of February, 1878." That before the appellees signed the bond the said Levin T. Miller had requested them to do so, with his two brothers, whose names appear in the body thereof, as his sureties, and they consented so to do after which, at the instance of the said Levin T. Miller, the clerk of the Warren circuit court drew the bond as given above, and afterwards, and on the same day, the appellees went to the clerk's office, examined the bond, and, finding the five names in the body thereof, signed it, with the expectation and understanding that it would be signed by the other parties. After the appellees signed the bond, they left it on the table in the clerk's office, and under the control of the clerk. Walter B. Miller and James C. Miller were financially responsible, but they at no time signed the bond. The court states as its conclusions of law four propositions, but as the third one is wholly immaterial to the questions before us for consideration, we will only refer to the other three of them. These are: (1) That it was the duty of Miller to have inventoried and charged to himself as administrator the amount due from him individually on account of collections as the agent of the administrator in Missouri; (2) that he fully paid over and accounted for all assets that came into his hands after his appointment as administrator; (4) that the appellees did not execute the bond, and the appellant had no right of action thereon as against them.

The most that can be said as to the arrangement is that Levin T. Miller requested the ap-. pellees to join his brothers in the bond as his sureties, and they consented so to do. From all that appears when the appellees signed the bond and left it with its proper custodian, they believed and anticipated that Walter B. and James C. Miller would also execute it, but attached no importance thereto as a condition to their liability thereon. This position is supported by the further fact that they learned the next day that the Millers had not signed the bond, and took no steps to have them sign it, or to be released therefrom. But if there had been a full and fair understanding with Levin T. Miller that the appellees were only to become liable in the event that Walter B. and James C. Miller executed the bond, the understanding would have been ineffectual unless made known to the clerk before he approved the bond and issued the letters. Their only relief after that was to apply to the court to be released from the bond, which they could have done at any time. The case of Allen v. Marney, 65 Ind. 401, is a very different case in its facts. There the bond was placed in the hands of the principal obligor, and taken to the justice of the peace after two of the sureties named in the body of the bond had signed it; the third person named therein not having signed it. The court in that case holds that the principal, under the circumstances, was the agent of the sureties, and the justice, of the obligee in the bond, and that the justice had sufficient notice to put him on inquiry as to whether the principal obligor in the bond was authorized to deliver it; but, had the sureties who signed the bond gone before the justice and signed and delivered it to him, not making known that the third person named as surety was to sign it before its approval by the justice, the court would have had a different case before it. We There are several errors assigned, but it is are not called upon to decide whether the apnot necessary that we notice them in detail. pellees would be liable or not, if it had been In our opinion the court erred in its conclu-understood that the clerk was not to approve

the bond until signed by Walter B. and James C. Miller, and that arrangement made known to him before he acted upon it.

The

to himself, is responsible for loss caused by the bank's failure, though the instrument creating the trust directed that the money should be deposited in that bank.

2. Where a testator bequeaths the proceeds of a certain note to one person and the residue of his estate to another, the entire costs of administra tion should be paid out of the residuary bequest.

Appeal from circuit court, Jennings county; JEPTHA D. NEW, Judge.

Enoch G. Corya administrator cum testamento annexed of Elizabeth R. Woodfill, deceased, filed his report and prayed to be discharged. Susie Corya, as guardian of Alice and Lizzie Wood fill, legatees, objected to the report. Her objections were overruled and she appeals.

John G. Berkshire and George F. Lawrence, for appellant. T. C. Batchelor, for appellee.

One question, which seems to have been overlooked on the trial of the cause, was the financial condition of Levin T. Miller, the administrator, during the period of his administration. The money collected by him while professing to act as the agent of the administrator in Missouri, and for which he had not accounted when he became administrator, was a claim in favor of his trust which he should have inventoried and charged himself with; and if by the use of due diligence all or any part of the claim could have been saved to the estate, his sureties are there with chargeable, but, if he was hopelessly insolvent, they do not become liable therefor, the burden as to the question of insolvency being on the administrator and his sureties. administrator's failure to make an inventory OLDS, J. Elizabeth R. Wood fill died inof the claim is not material as to the liability testate on the 26th day of September, 1884, of his sureties, unless actual damage followed disposing of her entire estate by items 1 and because of the failure. The finding of the 2 of her will, which items are as follows: court states that Levin T. Miller, the adminis-"Item 1. I will and bequeath to my grandtrator, had the money which he had collected daughters, Alice Woodfill and Lizzie Woodas the agent of the Missouri administrator fill, when they become of lawful age, to have under his control when he took out letters of the proceeds of a note that I now hold against administration. If we are to understand that Trevarrion Tobias and Francis W. Tobias, he had the particular money collected on de- for four hundred dollars, dated November 1, posit somewhere, and failed thereafter to ac- 1883, due in twenty-four months from date, count for it, then his sureties would be liable with six per cent. interest until paid, and for this failure, but we hardly think the court that some responsible person take possession intended to be thus understood. See 2 Rev. of said note, and collect the same when due, St. 1876, cl. 3, § 162, p. 551, which is the and deposit the money in the Jennings statute that was in force when the bond sued County Bank at North Vernon, Indiana, to upon was executed, and when the adminis- be given to said Alice Woodfill, one-half of trator was removed from his trust. See Con- said note when she is eighteen years old, and dit v. Winslow, 106 Ind. 142, 5 N. E. Rep. one-half to Lizzie Woodfill when she is eigh751; Miller v. Steele, 64 Ind. 79. The debt teen years old. Item 2. I give and bequeath of the administrator is to be accounted for as to my daughter, Delia Corya, all of my propother debts or assets, and he may show his erty, moneys, and effects of whatever kind, insolvency during the period of administra- to have and to hold forever, except as protion in discharge of his official liability. vided in item 1.” Said will was admitted to Woerner, Adm'n, § 311, p. 654; Griffith v. probate, and Enoch G. Corya was appointed Chew, 8 Serg. & R. 17; Eichelberger v. Mor- administrator with the will annexed on the ris, 6 Watts, 42; Tarbell v. Jewett, 129 Mass. 29th day of December, 1884. The uncon457; McCarty v. Frazer, 62 Mo. 263. In troverted facts show that at the time of the some of the states there is a statutory pro-appointment of Enoch G. Corya as adminisvision making the administrator liable for trator the appellant, Susie Corya, was the the amount of his debt as for so much cash duly-appointed and acting guardian of Alice in his hands, but we have no such provision. See section 512, p. 1139, Law of Administration, supra; Baucus v. Barr, 45 Hun, 582, affirmed 107 N. Y. 624, 13 N. E. Rep. 939. In view of the conclusion to which we have come, and as the judgment must be reversed, we feel that justice can be best subserved by granting a new trial. The judgment is reversed, and the court below ordered to grant a new trial, and to proceed in accordance with this opinion.

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and Lizzie Woodfill; that prior to the death of the testatrix, she had received $250 on the note bequeathed to said Alice and Lizzie, and placed it and the note with the will. Within a few days after the death of the testatrix, one Benjamin F. Byfield, one of the subscribing witnesses to the will, took the will and the $250 paid upon the note, and deposited the money and the will with the clerk of the Jennings circuit court. Afterwards, on the 3d day of November, 1884, Enoch G. Corya collected the balance due upon the note, $165.25, and deposited the same with the clerk of said court. After Enoch G. Corya had been appointed administrator, he received the money from the clerk, $415.25, and deposited the same in the Jennings County Bank, at North Vernon, Ind., on the 31st

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