Greer v. McNeal

• Decision Date: 16 July 1902
• Citation: 69 P. 893,11 Okla. 526,1902 OK 25
• Parties: GREER et al. v. McNEAL et al.
• Court: Oklahoma Supreme Court

69 P. 893

11 Okla. 526, 1902 OK 25

GREER et al. v. McNEAL et al.

Supreme Court of Oklahoma

July 16, 1902

Syllabus by the Court.

1. The sureties on an administrator's bond are bound to the extent to which their principal is bound.

2. The sureties upon an administrator's bond are, in the absence of fraud, concluded by the decree of the probate court, duly rendered upon a final settlement and accounting by their principal, as to the amount of the principal's liability althoughthe sureties on the bond are not parties to the accounting.

3. The sureties on an administrator's bond cannot attack collaterally a judgment of the probate court against the administrator upon a final settlement and accounting by their principal, for whose fidelity to his trust they have obligated themselves.

4. As a general rule, sureties on the bond of a public officer are not liable for any official delinquency or default of the principal occurring prior to the execution of the bond. But this general rule has no application to an administrator's bond, because the purpose for which an administrator's bond is given is entirely different. The term of office of a public officer is definite and certain while an administrator has no fixed tenure of office. It is a continuous trust or employment from the date of his appointment until the close of the administration. The condition of an official bond is that the principal shall faithfully perform the duties of the office to which he has been elected or appointed. The bond of an administrator is that he shall faithfully execute the duties of the trust according to law. Hence the sureties on an administrator's bond, conditioned as the bonds were in this action, are liable for whatever is properly chargeable to the administrator in his official capacity, and it is not essential to prove that the funds or property so chargeable were actually on hand and intact at the time the second or additional bond was executed. If the moneys or property are shown to have come to the hands of the administrator in his official capacity, and he has not properly disposed of or accounted for the same, he is bound to do so on a final settlement; and the sureties upon his bond, no matter when such bond wasexecuted and approved, are held liable for the faithful performance and execution of such trust.

5. The refusal or neglect of an administrator to obey or comply with the final judgment of the probate court rendered against him constitutes a breach in his bond which provides that he "shall faithfully execute the duties of the trust as suchadministrator, according to law," and renders him liable as well as the sureties thereon for the full amount of said judgment.

On petition for rehearing. Affirmed. For former opinion, see 69 P. 891.

HAINER J.

The statement of facts in the opinion of this court of September 4, 1901, does not correctly state the judgment of the district court. It says: "A judgment for $2,403.33 found to be due, and the liability distributed so that the sureties upon thefirst administration bond, up to the time of McNeal's release therefrom, were required to pay $1,759.06, and against the remainder of the defendants including the plaintiffs in error, for $644.27, with interest." The judgment that was rendered by thedistrict court was as follows: "That the plaintiff, T. F.

McKennon, administrator of the estate of Francis R. McKennon, was entitled to recover from Harry W. Pentecost, as principal, and J. W. McNeal, T. B. Reder, J. N. Wallace, Frank H. Greer, and Robert S. Reeves, as sureties, jointly and severally, the sum of $1,759.06, with interest thereon at the rate of 7 per cent. Per annum from the 27th day of July, 1897. The court further finds that the plaintiff was entitled to recover from thedefendants Harry W. Pentecost, as principal, and T. B. Reder, J. N. Wallace, Frank H. Greer, and Robert S. Reeves, as sureties, jointly and severally, the further and additional sum of $644.27, with interest thereon at the rate of 7 per cent. per annum from July 27, 1897, together with costs of the action." In other words, the court rendered judgment against all the sureties on both bonds for $1,759.06, and an additional judgment against all the sureties except McNeal (who was released by order of the probate court on December 12, 1895, and at the date of the execution of the second or additional bond) for the sum of $644.27,--in all the sum of $2,403.33,--together with interest at the rate of 7per cent. per annum from July 27, 1897, the date of the judgment rendered against Pentecost in the probate court. It appears from the record that on July 27, 1897, upon a full hearing and consideration of the final report of Harry W. Pentecost, late administrator of the estate of Francis R. McKennon, deceased, the probate court of Logan county found that there was a balance in the hands of the said Pentecost as administrator, and due the estate, in the sum of $2,403.33, for which amount judgment was rendered against the said Pentecost, and he was ordered and directed to forthwith pay over said amount to T. F. McKennon and George E. Billingsley, special administrators of said estate, the said sum of $2,403.33 as the money of said estate. There was no appealtaken from this judgment, and hence it was in full force and effect at the time these suits were brought upon the bonds of the late administrator, Harry W. Pentecost. In this action upon the bonds the plaintiff avers that the said Harry W. Pentecost, late administrator of the estate of Francis R. McKennon, deceased, has not paid over to the said T. F. McKennon and George E. Billingsley, special administrators, or to any person or persons, for and on behalf of said estate, the said sum of $2,403.33, orany part thereof, and that the said Harry W. Pentecost has in his hands the sum of $2,403.33, the money of said estate, and that he has neglected and refused to comply with the judgment and order of the probate court to pay over said money. We think that the findings and judgment of the probate court were final and conclusive, not only as against Pentecost, as principal on the bonds, but they were also final and conclusive against the sureties thereon.

Judge Woerner, in his late work on the American Law of Administration (page 547, § 255), states the general rule as follows: "The liability of a surety on an administrator's bond is coextensive with the liability of the principal in the bond. Therefusal or neglect of the principal to obey or comply with the judgment or decree of a court of competent jurisdiction constitutes a breach rendering the sureties liable, and they are bound and concluded by such judgment against the principal, unless ofcourse, there was collusion or fraud between the principal and those who seek satisfaction out of the sureties, which must be established in a direct proceeding." In Stovall v. Banks, 10 Wall. 583, 19 L.Ed. 1036, the supreme court of the United States, in passing upon this question, said: "Sureties in a bond are bound to the full extent to which their principal is bound. A surety cannot attack collaterally a decree made against an administrator, for whose fidelity to his trust he has bound himself." Mr. Justice Strong, in the course of the opinion, used the following language: "It has been argued on behalf of the defendant in error that the decree of the superior court, if admitted, would have been only prima facie evidence against the sureties inthe bond. Were that conceded, it would not justify the exclusion of the evidence. But the concession cannot be made. The decree settled that the administrator of the intestate, Alfred Eubanks, held in his hands sums of money belonging to the equitableplaintiffs in this suit, as distributes of the interstate's estate, which he had been ordered to pay over by a court of competent jurisdiction; and the record established his failure to obey the order. Thereby a breach of his administration bond was conclusively shown. Certainly the administrator was concluded. And the sureties in the bond are bound to the full extent to which their principal is bound." In Scofield v. Churchill, 72 N.Y. 565, it was held that, in the absence of fraud or collusion between the executor and legatee, the decree of the surrogate wasconclusive upon the sureties. Mr. Justice Miller, in the course of the opinion, said: "It cannot be denied that a breach of this condition has occurred within the letter of the bond, and the positive undertaking of the sureties has become fixed and operative by the surrogate's decree. In the absence of fraud or collusion between the executor and the legatee, the decree of the surrogate is conclusive upon the sureties. It binds the principal and the sureties alike, and cannot be impeached in a collateral proceeding. While the most solemn judgments do not conclude those who are neither parties nor privies, yet, when an oblige undertakes the payment of a judgment which may be recovered against his principal, he cannot escape the effect of such judgment when recovered. He has bound himself to pay, and is indebted for the amount of the judgment when recovered, without regard to its legal merits. Such is the nature of his contract, and he must abide and stand by it, irrespective of the consequences. Hecannot go behind it, or allege that it was erroneous, and embraced more than was intended. The decree is final as to the indebtedness of the estate and the obligation of the executor to pay, and the sureties cannot go back of such judgment. Thayer v. Clark, 4 Abb. Dec. 391; Id., 48 Barb. 243; People v. Downing, 4 Sandf. 189; Baggot v. Boulger, 2 Duer, 160." In Deobold v. Opperman, 19 N.E. 94, 2 L. R. A. 644, 7 Am. St. Rep. 760, the New York court of appeals said: "The sureties were bound by...