State ex rel. Walsh v. Farrar

• Decision Date: 31 October 1882
• Citation: 77 Mo. 175
• Parties: THE STATE TO THE USE OF WALSH v. FARRAR et al., Appellants.
• Court: Missouri Supreme Court

77 Mo. 175

THE STATE TO THE USE OF WALSH

v.FARRAR et al., Appellants.

Supreme Court of Missouri.

October Term, 1882.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Cline Jamison & Day for appellants.

1. The object of an administrator's bond is to protect those who are entitled to a share in the estate, either as creditors or distributees, from the wrongful or negligent acts of the principal. There can be no recovery on such bond unless the plaintiff can show an interest in the estate. Holmes v. Cock, 2 Barb. Ch. 429; Brandt on Suretyship, p. 640, § 502; Rawson v. Piper, 34 Me. 98; Williams on Executors, 536, note 1. And it must be a vested, not a contingent interest. Stevens v. Cole, 7 Cush. 467. Here, Walsh is neither creditor, heir, devisee nor legatee. Again, in taking property belonging to one not his intestate, he did not act as administrator, although in his individual judgment, he may have thought that the deceased had owned the thing replevied. But an administrator is not an insurer against loss, even when the property belongs to the estate. Fudge v. Durn, 51 Mo. 264. He is liable only for the care bestowed by a prudent man in the direction of his affairs. State v. Meagher, 44 Mo. 356.

2. The property converted by Dailey was not a part of the assets of the estate. This was so decided by the court. It is not even stated in the petition that Dailey inventoried it, or charged himself as administrator with it. It was something altogether without the funds upon which he was appointed to administer, and was no part of the estate which the bond was given to protect. Judgment, therefore, recovered against Dailey in the circuit court was not an order or decree touching the administration, nor was it decided that the estate was in any way liable to the respondent here. The due administration of the estate, for which an administrator gives security, consists in paying its obligations and distributing the balance to the parties entitled to it. Cunningham v. Souza, 1 Redf. 462. The surety is only bound for the faithful performance of the duties of an administration. Harker v. Irick, 10 N. J. Eq. 269. As the surety of an administrator will be liable only for the faithful administration of such assets as he had a right to receive and was, therefore, bound to administer, he would not be chargeable for the misapplication of assets received without authority. Fletcher v. Sanders, 7 Dana 345, 350. In taking the property Dailey entirely transcended his power as administrator, and made himself liable, not in his official capacity, but as a private individual simply, to return it. As it never was a part of the estate, Dailey, as administrator, should never have taken it, and that being determined, it remained only that Dailey, not the estate, should be decreed to make reparation. The sureties on an official bond are entitled to have their liability strictly construed.

The very fact that the law required a replevin bond to be given before Dailey could take the property, is a very strong argument that the bond given by him as administrator was not intended to cover the property in case it should appear that it was not part of the estate.

George M. Stewart for respondent.

1. It is settled in this State that an administrator may bring replevin; ( McDonald v. Walton, 2 Mo. 49;) and in the event of a judgment against, it must be de bonis testatoris. Ranney v. Thomas, 45 Mo. 112. See also Wooldridge v. McDonald, 15 Mo. 470; State v. Maulsby, 53 Mo. 500; Ross v. Alleman, 60 Mo. 269. Patrick Roddy's judgment, therefore, was against Dailey as administrator. This was not a demand which could have been proven against the estate. Presbyterian Church v. McElhinney, 61 Mo. 540; Wernecke v. Kenyon, 66 Mo. 275. It was, however, a demand for which the sureties of Dailey were liable. Dix v. Morris, 1 Mo. App. 93; Dix v. Morris, 66 Mo. 514; State v. Creusbauer, 68 Mo. 254. Dailey, as administrator, had taken the property by virtue of the order of delivery, and the effect of the judgment being that he had wrongfully taken it, the defendant elected to take a money judgment for its value. In fact, no loss falls on the sureties, for they are only compelled to restore the value of property which the administrator had received and made part of the estate of the decedent by virtue of the process awarded him, upon the giving of the bond upon which plaintiff became surety. The estate is not impaired or injured thereby. It wrongfully received this amount and it must be restored. The judgment of the circuit court upon which this action was based was, that Dailey, as the administrator and representative of the estate, should restore to the plaintiff the money which he had mistakenly placed among the assets of the estate, and which, by subrogation, belonged to the plaintiff. He failed to obey this order and his sureties on his administration bond became liable.

2. The plaintiff Walsh stands substituted to the rights of Patrick Roddy, as they were before the judgment was paid. Haren v. Foley, 18 Mo. 136; s. c., 19 Mo. 632; Burnside v. Fetzner, 63 Mo. 107; Allison v. Sutherlin, 50 Mo. 274.

3. The order of the circuit court made upon the administrator to pay the plaintiff the amount he had paid to satisfy the judgment in the replevin case was imperative, and the disobedience of it a breach of the administration bond, and the sureties were concluded by this order. State v. Holt, 27 Mo. 340; Taylor v. Hunt, 34 Mo. 205; State v. Coste, 36 Mo. 437; Townsend v. Townsend, 60 Mo. 246; McCartney v. Garneau, 4 Mo. App. 566. This order or judgment was against Dailey as administrator, and directed him to pay the amount named out of the assets and property of the said estate. Ranney v. Thomas, 45 Mo. 112.

HOUGH, C. J.

Thomas J. Dailey, as administrator of the estate of James Roddy, deceased, brought an action of...