Ordinary v. Connolly

• Decision Date: 09 March 1909
• Citation: 72 A. 363,75 N.J.E. 521
• Parties: ORDINARY v. CONNOLLY et al.
• Court: New Jersey Supreme Court

72 A. 363

75 N.J.E. 521

ORDINARY

v. CONNOLLY et al.

Prerogative Court of New Jersey.

March 9, 1909.

Application by the ordinary against Paul V. Connolly and the American Bonding Company of Baltimore for the assessment of damages on a judgment on an administrator's bonds. The application, so far as it referred to counsel fees, was resisted. Application granted.

Floyd H. Bradley, for the application. S. Conrad Ott, opposed.

WALKER, Vice Ordinary. An administrator appointed by the Camden county orphans' court for the personal estate of Elizabeth M. Stigale, deceased, was removed by that court for certain derelictions, and Mr. Bradley was substituted as administrator in his place and stead. Subsequently, by an order of this court, suit was directed to be brought upon certain bonds given by the administrator and the American Bonding Company of Baltimore, his surety. Such suit was brought and judgment was recovered for $3,500, the penalties of the bonds, and $23.31 costs of suit. Application is now made to assess the damages and for direction that execution issue upon the judgment to make such damages, with costs, including counsel fees. The application, so far as it refers to counsel fees, is resisted.

The solution of the question at issue depends, in my judgment, upon the conditions in the bonds upon which the judgment was recovered. There were three bonds. The first one was an ordinary administration bond (in the penal sum of $100), and contained the following conditions: (1) that the administrator will make and exhibit an inventory; (2) that the goods, chattels, and credits he will well and truly administer according to law; (3) that he will make a true account of his administration; (4) that all the residue of the goods, chattels, and credits found remaining upon the account, as allowed by the proper court, he will deliver and pay over to the persons entitled. Ordinary v. Cooley, 30 N. J. Law, 271, 274. In this case (Ordinary v. Cooley) the history and origin of the different conditions of an administrator's bond are set forth and commented upon, and it is shown that the first two conditions were to secure the making an exhibition of an inventory and the payment of debts (Id. p. 277), and the last two were to secure an accounting and to pay over the surplus to the next of kin (Id. p. 278). The second bond (in the penal sum of $1,000) recited that surplus money amounting to $487.06 arising from the sale of mortgaged premises which were of the decedent was about to come to the hands of the administrator for the payment of debts, and contained three conditions: (1) To well and truly administer the surplus money; (2) to account for the surplus which should be found remaining upon the account of such surplus money; (3) to distribute and pay such surplus unto such person or persons as should be entitled to receive the same. The third bond (in the penal sum of $2,400) contained three conditions: (1) To well and truly administer the moneys arising from the sale of lands, tenements, or real estate of the deceased directed by order of the orphans' court to be sold; (2) to account for his administration; (3) and the surplus money which should remain upon the account of such sale to distribute and pay unto the person or persons entitled to receive the same.

Administrators' bonds are given to secure the creditors and next of kin of the deceased from loss through the default or fraud of the administrator, and amount to indemnity to the estate. Indemnity is that which is given to a person to prevent his suffering damage. 1 Bou. Dic. (Rawles' Rev.) p. 1010. These bonds are given to the ordinary for the benetit of creditors and next of kin. In Hazen v. Durling, 2 N. J. Eq. 133, it was held that the condition of an administration bond under the statute of this state is not restricted merely to the rendering of an account, but is designed to secure a faithful administration of the estate. And in Williamson v. Snook, 10 N. J. Law, 65, the Supreme Court held, at page 69 of 10 N. J. Law, that the ordinary is appointed by statute to make good to all persons the damages sustained by occasion of the breach of the condition of an administration bond, and that lie must have the whole penalty, if he should find it necessary, for those purposes. A bond is a form of obligation under seal by which the party making it, the obligor, acknowledges himself bound to the other party, the obligee, in a specified form. Literally the obligor by the terms of the instrument says that he is absolutely obliged to pay the penalty unless he fulfills the condition. On failure to perform the condition the penalty became an absolute debt, and at law was recoverable. In equity, however, it was treated as security for the performance of a condition, and relief was granted against the enforcement of the penalty on payment of a sum as damages,...