Reed v. Hume

• Decision Date: 23 December 1902
• Docket Number: 1397
• Court: Utah Supreme Court
• Parties: MILLIE G. REED, as Administratrix of the Estate of EDWARD A. REED, Deceased, Respondent, v. RICHARD T. HUME, as Administrator of the Estate of GEORGE H. BURGITT, Deceased, GEORGE J. KELLY and ANDREW J. WARNER, Appellants

70 P. 998

25 Utah 248

MILLIE G. REED, as Administratrix of the Estate of EDWARD A. REED, Deceased, Respondent, v. RICHARD T. HUME, as Administrator of the Estate of GEORGE H. BURGITT, Deceased, GEORGE J. KELLY and ANDREW J. WARNER, Appellants

No. 1397

Supreme Court of Utah

December 23, 1902

Appeal from the Second District Court, Weber County.--Hon. H. H Rolapp, Judge.

Action upon an administrator's bond, given by George H. Burgitt during his lifetime as administrator of the estate of Edward A. Reed, wherein George J. Kelly and Andrew J. Warner were sureties. From a judgment in favor of plaintiff, defendants appealed.

REVERSED.

H. H Henderson, Esq., for appellants.

Sureties on an administrator's bond can not be sued until the amount due from the administrator has become fixed and determined by a decree of the probate court or by a decree in an equitable action for an accounting.

This principle is well established. Grady v. Hughes, 80 Mich. 184; Tudhope v. Potts, 91 Mich. 490; Gott v. Culp, 45 Mich. 265; Green v. Creighton, 64 U.S. 90; Chaquette v. Ortette, 60 Cal. 594; Allen v. Tiffany, 53 Cal. 16; Irwin v Bachus, 25 Cal. 214; In re Alliger, 65 Cal. 228; In re estate of Curtiss, 65 Cal. 572; Weihe v. Stathan, 67 Cal. 84.

Abbot R. Heywood, Esq., for respondent.

MARIONEAUX, District Judge. BASKIN and BARTCH, JJ., concur.

OPINION

MARIONEAUX, District Judge.

--The complaint filed in the district court is as follows: "Plaintiff complains and alleges: First. That she is the administratrix of the estate of E. A. Reed, deceased, and duly appointed by this court, and qualified and acting as such. Second. That the defendant Richard T. Hume is the administrator of the estate of George H. Burgitt, deceased, and duly appointed by this court, and qualified and acting as such. Third. That the said George H. Burgitt died on the -- day of , 1900, and at the time of his death he was the duly qualified and acting administrator of the estate of E. A. Reed, aforesaid, deceased, having been appointed by the predecessor of this court. Fourth. That said George H. Burgitt, as such administrator, gave an official bond to the predecessor of this court in the sum of $ 2,500 for the faithful performance of his duties and of his trust as such administrator, and that defendants George J. Kelly and Andrew J. Warner were the sureties on said bond, obligating themselves therein that they were bound in that sum that the said Burgitt should faithfully perform his duties therein, and honestly discharge said trust. Fifth. That the said George H. Burgitt was appointed administrator some time on the -- day of , 1894, and that subsequent to that time there came into his hands the following amounts of the said estate of E. A. Reed, to-wit: Cash, January 23, 1894, $ 447.82; life insurance, $ 500; Weber Canal stock, $ 46; safe sold to W. H. Rowe, $ 50; buggy sold to A. Allen, $ 20; desk sold to S. P. Ash, $ 3; land sold to S. Meyers, $ 10; desk sold to S. P. Ash, $ 25. That the said George H. Burgitt never made any account of the same to this court, or to any one, and, according to information and belief, plaintiff alleges that he appropriated the same to his own use. Sixth. That on the thirteenth day of February, 1901, plaintiff presented to Richard T. Hume herein an itemized statement of said accounts, duly verified according to the laws of the State of Utah all in writing, and demanded of him that he approve the same, as administrator of said estate of G. H. Burgitt, as a claim against said estate. That she also demanded of said sureties that they pay her said amounts, but they have wholly refused and failed to do so. Seventh. That on February 20, 1901, the said R. T. Hume, as such administrator, rejected in writing the said claim. That this plaintiff never knew of the said amounts having been received by the said George H. Burgitt, as such administrator, or at all, until about the time she was appointed administratrix of said estate this year. Wherefore plaintiff demands judgment against defendants for the sum of $ 1,101.82, with legal interest thereon from the date of the respective receipts of said amount by said Burgitt as such administrator." To this complaint the defendants interposed a demurrer, alleging that it does not state facts sufficient to constitute a cause of action, and that the joinder of Kelly and Warner as parties defendant is erroneous. The demurrer was overruled, and the defendants filed an answer, denying that the moneys alleged had come into the hands of Burgitt, or that he had converted them. Defendants also filed a counterclaim, in which they set out that Burgitt, on the eighteenth day of December, 1891, was duly appointed as the guardian of the person and estate of said E. A. Reed, then an incompetent person, and that he acted as such until March 2, 1895; that on August 28, 1894, said Burgitt was appointed administrator of the estate of said E. A. Reed, deceased; and that on March 2, 1895, the probate court of Weber county allowed Burgitt the sum of $ 1,700 for his services and for counsel fees paid out by him, and that sum was made a prior lien upon all the assets in his hands, both as guardian and as administrator, and that no part of said sum has been paid; and they prayed to be dismissed, with their costs. A trial was had before the court without a jury, and it appeared that E. A. Reed, incompetent, died on March 14, 1894; that Burgitt was then his guardian, as alleged, and had on hand $ 447.82 in money; that in February, 1895, he presented a verified petition to the probate court, claiming for services and counsel fees paid out by him the amount stated, and that on March 2, 1895, it was duly allowed in open court, after a hearing and the examination of witnesses; that no part of it had ever been paid; that Burgitt died in 1900, and that thereafter plaintiff was appointed administratrix of the estate of E. A. Reed, deceased, and the defendant Hume was appointed administrator of the estate of Burgitt, deceased; that there came into the hands of Burgitt, in his lifetime, and after his appointment and qualification as administrator, the sum of $ 604, realized from the collection of a policy of life insurance and the sale of certain real and personal property, in addition to the sum of $ 447.82, in his hands as guardian at Reed's death. It did not appear that Burgitt, in his lifetime, had accounted for this money. Upon this evidence the court found that he had converted to his own use the said sum of $ 604, and entered judgment therefor in favor of plaintiff, and as to the pleaded set-off the court said: "(9) That the said George H. Burgitt was allowed the sum of $ 1,700 for services and for counsel fees as such guardian, but that the same was not a lien upon, and had nothing to do with, the estate of E. A. Reed, deceased, or the moneys belonging to said estate that came into the hands of the administrator of said estate of E. A. Reed, deceased. (10) That all the moneys remaining in the hands of said George H. Burgitt, as such guardian of the estate of E. A. Reed, incompetent, were retained and kept by said Burgitt, none thereof being turned over to himself as administrator of the estate of E. A. Reed, deceased, and that among the moneys he retained as such guardian were $ 447.82 in cash that he had at the time of the death of said Reed, and which is not to be included in the judgment herein."

We are of the opinion that the findings above quoted can not be sustained upon the evidence. The claim of Burgitt was unquestionably a claim against the deceased for services rendered to him in his lifetime, and it was presented to the probate court after Reed's death and after Burgitt's appointment...