Salyer v. State ex rel. Tyner

• Decision Date: 05 June 1854
• Citation: 5 Ind. 215
• Parties: Salyer v. The State on the relation of Tyner
• Court: Indiana Supreme Court

5 Ind. 215

Salyer v. The State on the relation of Tyner

Supreme Court of Indiana

June 5, 1854

ERROR to the Fayette Circuit Court.

The judgment is affirmed, with 3 per cent. damages and costs.

J. A Fay and J. Perry, for the plaintiff.

G Holland, for the state.

OPINION

Davison J.

Debt by the state on the relation of Richard Tyner and others, against Robert N. Taylor, an administrator, and Charles Salyer, his security. The declaration is upon a bond in the penalty of 10,000 dollars, conditioned that Taylor would truly and faithfully perform the duties and trusts committed to him as administrator of the personal estate of Isaao F. Riggs, deceased. The breaches assigned are--

1. That the administrator did not, nor would, faithfully discharge the duties and trusts committed to him, but on the contrary thereof, afterwards, to-wit, on the first of January, 1848, at, &c., wasted and converted the personal estate of the decedent, of the value of 5,000 dollars, to his own use. That the relators are creditors of said estate, and hold valid claims against it, to the amount of 5,000 dollars, which are unpaid, &c.

2. That Taylor at the February term, 1847, made a pretended settlement of said estate in the Probate Court of Fayette county. That afterwards Richard Tyner and others, the present relators, filed their bill to open up that settlement on the ground of waste, &c. And upon said bill, the Probate Court, at the February term, 1850, found that there was then in the hands of said administrator, not paid nor in any way whatever accounted for, 1,732 dollars. Whereupon a decree passed that said settlement be opened up, and that the said Richard Tyner and others recover of Taylor, as such administrator, 1,732 dollars, with their costs, &c. Upon this decree a writ of execution was duly issued and returned nulla bona.

As to Taylor, there was a return of "not found." Salyer appeared and pleaded four pleas:

1. That the Probate Court, in July, 1841, ordered the estate of Riggs to be marshalled, the assets belonging alone to that estate to be applied to his individual debts, and the assets which belonged to a firm of which Riggs, in his lifetime, was a member, were directed to be applied to partnership liabilities. That Taylor, as administrator of the decedent's individual estate, had faithfully discharged the duties and trusts committed to him, and fully accounted for and paid over all moneys, &c. That the claim specified in the declaration was a demand against said individual estate. And that there were still partnership demands against the assets in his hands, unpaid, and of an amount larger than that sued for in this action, &c.

2. That in August, 1838, the Probate Court, upon the application of the administrator, ordered the real estate whereof Riggs died seized, to be sold and made assets, &c. Thereupon Taylor, with one Benjamin Ross and one Samuel Ross, executed a bond to the state, in the penalty of 1,000 dollars, conditioned that he would faithfully account for all moneys that might come into his hands upon the sale of such estate, and properly apply the same in settlement, &c. That Taylor, pursuant to said order, sold the real estate of the deceased, and received from the sale thereof 1,232 dollars, which he loaned to divers individuals, and received interest thereon to the amount of 800 dollars. For these sums Taylor never accounted to the Court, but converted the same to his own use; on account whereof, and Taylor's failure therein, the said Court rendered the decree in the declaration specified, &c.

3. That there is no such decree and recovery remaining of record in the Probate Court, in manner and form, &c.

4. That as such administrator Taylor hath fully administered and accounted for all the assets, &c., of the individual estate of Riggs, that ever came to his hands to be administered, &c.

Demurrers were sustained to the first, second and fourth pleas. To the third, the plaintiff filed her replication, which led to an issue. That issue the Circuit Court tried, and found for the plaintiff. Judgment upon the finding of the Court.

The demurrer to the first and fourth pleas raises the inquiry whether the decree upon which the plaintiff relied for a recovery in this suit, was conclusive against the defendant. If it was, then the demurrer to these pleas was correctly sustained, because each of them sets up matter tending to impeach the decree. It has been decided that a judgment against an administrator, if obtained without fraud, is conclusive against his sureties in an administration bond, as to the merits of the original action. Heard v. Lodge, 20 Pick. 53; 32 Am. D. 197. We think that in the present case the surety is estopped from controverting the validity of the decree ascertaining the amount of debt to be paid by the administrator. But it is insisted that in addition to the allegation of a judgment, writ of execution, and return of nulla bona, the declaration should have contained a formal averment of a devastavit. The declaration shows, that upon a bill charging the administrator with having made a pretended final settlement, and with having committed waste, the Probate Court opened up his settlement and found in his hands, unaccounted for, assets belonging to the decedent's estate, to the amount of 1,732 dollars. This, in our opinion, was a sufficient conviction of what the statute...