State v. Roth

• Decision Date: 26 June 1886
• Citation: 1 S.W. 98
• Parties: STATE, to Use of McCRARY and others, <I>v.</I> ROTH and others.
• Court: Arkansas Supreme Court

1 S.W. 98

STATE, to Use of McCRARY and others,v.

ROTH and others.

Supreme Court of Arkansas.

June 26, 1886.

Appeal from Jefferson circuit court.

Action on administrator's bond against the sureties, in the name of the state, for the benefit of heirs. Judgment for defendant, and appeal therefrom by plaintiff.

J. M. & J. G. Taylor, for appellant. W. M. Harrison and N. T. White, for appellees.

COCKRILL, C. J.

The question presented by the record in this case is as to the sufficiency of the complaint. The action was brought in the name of the state, for the use of the children of Spruce W. McCrary, deceased, against John Roth, R. H. Stanford, and Henry Nathan, sureties in the bond of J. F. Vaughan as administrator of said McCrary's estate. The bond was in the penal sum of $2,000, and bore date and was executed on the nineteenth day of February, 1875. The breach of the condition of the bond assigned was that upon the examination and confirmation of his final account and settlement, filed on the twenty-fourth day of July, 1877, but which was not finally acted upon until the twenty-third day of April, 1880, Vaughan was found indebted to the estate, on account of assets which had come into his hands, in the sum of $2,266.25, and that he had converted the said assets to his own use. The complaint contained no averment that the creditors of the estate had been paid, or that there were no debts; nor did it allege that an order for the payment of distributive shares had been made by the probate court. The defendants interposed an answer, to which the plaintiff demurred, but the court conceived that the complaint was insufficient, and sustained the demurrer to it, and dismissed the action.

The allegations of the complaint do not establish an interest in the matter in controversy in the parties for whose benefit the action was brought. It is not alleged, as the counsel for these parties assumes, that the administration had been closed, nor is there any allegation that the amount in the administrator's hands had been adjudged by the probate court to them. The allegation is simply that, upon the coming in of the final account of the public administrator, it was adjudged that he was indebted to the estate in the sum stated. It is immaterial whether this indebtedness arose from a conversion of the assets of the estate or otherwise; it remains a final judgment against the administrator, and fixes the extent of the liability of the sureties upon his bond if he refuses or neglects to account for the amount. If he has wasted or converted the assets, his liability becomes a chose in action belonging to those entitled to the estate, as...