Dugger v. Wright

• Decision Date: 23 February 1889
• Citation: 11 S.W. 213,51 Ark. 232
• Parties: DUGGER v. WRIGHT
• Court: Arkansas Supreme Court

11 S.W. 213

51 Ark. 232

DUGGER v. WRIGHT

Supreme Court of Arkansas

February 23, 1889

APPEAL from Independence Circuit Court, R. H. POWELL, Judge.

Judgment reversed.

Coleman & Yancey, for appellants.

The executrix appropriated to her own use the property belonging to the estate, Dec. 28, 1883. This was the time of the conversion, and fixed the liability of her sureties as it was before they were released, Mansf. Dig., sec. 35. The sureties on the bond when a default is made are liable. Murfree Off Bonds, sec. 635; 32 Ark. 424.

U. M. & G. B. Rose, for appellees.

Several settlements were filed and approved after the alleged conversion, and these can only be impeached in equity. Mansf. Dig., sec. 128; 14 Ark. 122; 16 Id., 474; 20 Id., 526; 30 Id., 67; 34 Id., 63; 36 Id., 384; 40 Id., 393.

At the time the executor was ordered to pay over, appellees had long since been released and appellants were the sureties. Parties who are the sureties at the time of the breach are the ones responsible. Muffree Off. Bonds, secs. 635, 638; see also 35 F. 397.

OPINION

COCKRILL, C. J.

This is a suit by some of the distributees of the estate of John S Dugger against the sureties on the bond of the delinquent executor to recover the sum of $ 291.50 and interest as the value of property of the estate converted by the executor. The validity of the bond and the delinquency of the executor are not questioned. The defendants, who are the appellees here, were released from future liability upon the bond by the probate court, and new sureties were supplied in lieu of them after the converted assets were received by the executor. It is argued that the breach of the bond occurred after their release and that they are not liable. But the facts as certified to us fix the date of the conversion in the lifetime of the defendants' liability. The property was not accounted for, nor was the claim for it passed upon in the adjudication and allowance of any of the executor's accounts in such a manner as to preclude the probate court from eventually charging him with it and requiring a distribution, as it did, of the full amount due to the distributees. The right of recovery is, therefore, plain. But there is an obstacle in the way of a full recovery. Three of the distributees, who are plaintiffs in this cause, became sureties on the bond at the time the defendants were released. They signed the old bond upon which the defendants were sureties, and the conditions of their undertaking were of course identical with those the defendants had assumed. The conversion had taken place when they signed and the liability of the defendants, who were the former sureties, had become fixed. It required only the order of the probate court to authorize suit against them. But the breach was a continuing one, because it was still the executor's duty to account to the probate court for the proceeds of the property; and when he failed to comply with the order of the court directing him to pay over the amount with which he had been charged on that account, the new sureties became liable by the terms of their undertaking to make good his default. There are no terms in the office of executor or administrator, and the principle which is properly invoked in the case of a public officer who executes a bond for the faithful discharge of the duties of his office for the term upon which he is about to enter, is not applicable. The new bond, or the obligation of the new sureties, relates back, and the two sets of sureties are jointly liable to the distributees and ethers for whose benefit they have contracted, for breaches committed prior to the second execution. Schouler on Executors, sec. 148; Beard v. Roth, 35 F. 397; Scofield v Churchill, 72 N.Y. 565; Choate v. Arrington, 116 Mass. 552; Dawes v. Edes, 13 Mass. 177; Com v. Gould, 118 Mass. 300, Pinkstaff v. State, 59 Ill. 148; State v. Berning, 74 Mo. 87; Morris v. Morris, 56 Tenn. 814, 9 Heisk. 814; ...