Kenck v. Parchen

• Decision Date: 08 May 1899
• Parties: KENCK v. PARCHEN et al.
• Court: Montana Supreme Court

57 P. 94

22 Mont. 519

KENCK v. PARCHEN et al.

Supreme Court of Montana

May 8, 1899

1. The sureties on an administrator's bond cannot defeat their liability on the ground that it was signed by them on condition that the administrator should sign before delivery since such bond is good as to the sureties, without the signature of the principal, who procures and delivers it.

2. The delivery of an administrator's bond without the signature of the principal is not a violation of an agreement with the sureties that the bond was not to be filed with the probate court until he had signed it, where his name was signed in the body of the instrument before delivery.

3. A judgment against an administrator in a probate proceeding determining the amount of his indebtedness to the estate is conclusive as against the sureties, and cannot be inquired into collaterally.

Appeal from district court, Lewis and Clarke county; Horace R. Buck Judge.

Action by Joseph Kenck, as administrator of the estate of William Craigie, deceased, against Henry M. Parchen and another impleaded, etc. From a judgment for plaintiff and an order denying their motion for a new trial, defendants appeal. Affirmed.

Toole & Wallace, for appellants.

T. J Walsh, for respondent.

PIGOTT J.

From June 23, 1888, to January 28, 1893, defendant Yaeger was administrator of the estate of William Craigie, deceased. On the day last mentioned, his letters were revoked, and on June 12th following plaintiff qualified. On December 2, 1895, in a proceeding against Yaeger for an accounting touching his administratorship, the court found that on September 1, 1889 he had converted to his own use $2,256 of the money of the estate, which sum, with interest thereon at the rate of 6 per cent. per annum from October 1, 1889, amounting in all to $3,090.72, he still owed the estate; and judgment against Yaeger was rendered accordingly. To recover the sum so adjudged due from Yaeger, this action was brought against him and his sureties on his official bond, of which the following is a copy: "Know all men by these presents, that we, Henry C. Yaeger, as principal, and T. H. Kleinschmidt and Henry M. Parchen, as sureties, are held and firmly bound to the territory of Montana in the sum of five thousand dollars, lawful money of the United States of America, to be paid to the said territory of Montana, for which payment well and truly to be made we bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 20th day of June, 1888. The condition of the above obligation is such that whereas, by an order of the probate court of the county of Lewis and Clarke, territory of Montana, duly made and entered on the 13th day of June, 1888, the above-bounden Henry C. Yaeger was appointed administrator of the estate of William Craigie, deceased, and letters of administration were directed to be issued to him upon his executing a bond, according to law, in said sum of five thousand dollars: Now, therefore, if the said Henry C. Yaeger, as such administrator, shall faithfully execute the duties of the trust according to law, then this obligation to be void, otherwise to remain in full force and effect. T. H. Kleinschmidt. Seal. H. M. Parchen. Seal." Yaeger presented the bond to the probate judge, who approved it on June 23d, and the clerk, after filing it, issued letters to Yaeger, who had already taken the oath prescribed. The sureties answered, denying that Yaeger converted any funds of the estate. They interposed also the following plea: "Deny that these answering defendants ever executed, made, or delivered the said alleged bond set forth in paragraph 3 of said complaint; and, while admitting that they signed the same, they aver that they signed the same without intending to enter into any independent undertaking for themselves, and upon the express condition and direction to the defendant Yaeger that the same should not be filed with the probate court until said Yaeger himself had signed the same as principal, and that the said Yaeger was so named as a party to said bond upon the face thereof, but that he never sig ned or executed the said bond." Trial was by ...