United States v. Walker

• Decision Date: 19 November 1883
• Citation: 109 U.S. 258,27 L.Ed. 927,3 S.Ct. 277
• Parties: UNITED STATES, to the use, etc., v. WALKER
• Court: U.S. Supreme Court

109 U.S. 258

3 S.Ct. 277

27 L.Ed. 927

UNITED STATES, to the use, etc., v. WALKER.

November 19, 1883.

This was an action at law on an administrator's bond. The bond was made by Charlotte L. Ames and Cunningham Hazlett, as administrators of the estate of Horatio L. Ames, deceased, with Frederick P. Sawyer and the defendant in error, David Walker, sureties. It was in a penalty of $120,000, was payable to the United States, and was subject to the condition that the said Ames and Hazlett should well and truly perform the office of administrators of Horatio Ames, deceased, and discharge the duties of them required as such without any injury to any person interested in the faithful performance of said office. Hazlett died at a date not given, and after his death and until January 9, 1875, Charlotte L. Ames continued to be sole administratrix, and on the day last named she was removed from said office by order of a justice of the supreme court of the District of Columbia, and on the same day Nathaniel Wilson was appointed administrator de bonis non. On January 22, 1876, Charlotte L. Ames, in the settlement of her account as administratrix, was directed by the decree of a justice of said supreme court, holding a special term for the transaction of orphans' court business, to pay over to said Nathaniel Wilson, administrator de bonis non of the estate of Horatio Ames, deceased, on or before February 8, 1876, the sum of $34,876.75. She failing to pay this sum or any part of it, Wilson, administrator de bonis non, on April 12, 1876, brought this suit in the name of the United States for his use, on the bond above mentioned, against Charlotte L. Ames, David Walker, and the administrators of the estate of Frederick P. Sawyer, who, on August 31, 1875, had departed this life. The suit was afterwards discontinued as to Charlotte L. Ames and the administrators of Sawyer, and was prosecuted against David Walker alone.

The declaration contained two counts. The first count set out the obligation of the bond without stating the condition. The second count stated the obligation of the bond and averred the condition as above set forth, and assigned as breach the failure of Charlotte L. Ames to pay over to Wilson, the administrator de bonis non, the said sum of $34,876.75.

The defendant pleaded to the first count the condition of the bond and its performance. To the second count he pleaded, first, 'that by the condition of the bond the defendant, as surety, became liable to the plaintiff, as administrator de bonis non, only for such of the assets of the estate as had not been converted into money by the said administrators or the survivor, and the defendant says that the assets of said estate consisted wholly of a claim or chose in action owing by the government of the United States, and that the money claimed in this action is the proceeds of said claim or chose in action collected from the government, and thereby converted into money,' etc. The second plea to the second count averred that the defendant, as surety as aforesaid was liable only for such assets of said estate as had not been administered by said administrators or the survivor, and that the money claimed in this action is for assets which had been administered before the removal of said surviving administrator from office, and the appointment of plaintiff. Both these pleas also aver that defendant was not a party to the proceeding in which the order to pay over was made and was served with process therein, nor did he voluntarily appear.

In his replication to the first plea (the plea of condition performed) the plaintiff set out three breaches, each of them consisting in the failure of the administratrix to pay over the money to her successor in compliance with an order of the court. The plaintiff demurred to the remaining pleas. The defendant demurred to the replication to the first plea. Issue was joined on both demurrers, and the court, in general term, overruled the plaintiff's demurrer, sustained that filed by the defendant, and entered judgment for the defendant. The plaintiff thereupon sued out this writ of error.

A. S. Worthington, for plaintiff in error.

W. D. Davidge, for defendant in error.

WOODS, J.

The first question presented by the record is whether it was competent for the administrator de bonis non of the estate of Ames to sue on the bond of the principal administrator to recover money collected by him from the United States and not paid over or accounted for. It is well settled at common law that 'the title of an administrator de bonis non extends only to the goods and personal estate, such as leases for years, household goods, etc., which remain in specie and were not administered by the first executor or administrator, as also to all debts due and owing to the testator or intestate.' Bac. Abr. tit. 'Executors and Administrators, B 2, 2;' citing Packman's Case, 6 Coke, 19.

In illustration of this rule the same authority says:

'It is holden that if an executor receives money in right of the testator, and lays it up by itself and dies intestate, that this money shall go to the administrator de bonis non, being as easily distinguished as part of the testator's effects, as goods in specie. But if A. dies intestate, and his son takes out administration to him and receives part of a debt, being rent arrear to the intestate, and accepts a promissory note for the residue, and then dies intestate, this acceptance of the note is such an alteration of the property as vests it in the son; and therefore, on his death, it shall go to his administrator, and not to the administrator de bonis non.'

An administrator de bonis non derives his title from the deceased, and not from the former executor or administrator. To him is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by thf former executor or administrator, in his character as such, and kept by itself, will be so regarded; but if mixed with the administrator's own money, it is considered as connected, or as, technically speaking, 'administered.' Beall v. New Mexico, 16 Wall. 535; Wernick's Adm'r v. McMurdo, 5 Rand. 51; Bank of Penn. v. Haldeman, 1 Pen. & W. 161; Kendall v. Lee and Potts v. Smith, 3 Rawle, 361; Bell v. Speight, 11 Humph. 451; Swink's Adm'r v. Snodgrass, 17 Ala. 653; Slaughter v. Froman, 5 T. B. Mon. 19; Gamble v. Hamilton, 7 Mo. 469; Wiggin v. Swett, 6 Metc. 194; State v. Johnson, 7 Blackf. 529.

In the case of Beall v. New Mexico, supra, it was said by Mr. Justice BRADLEY, speaking for this court, that 'by the English law, as administered by the ecclesiastical courts, the administrator who is displaced, or the representative of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate,—distributees, next of kin, or creditors,—and the accounting may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered.'

Such was the law of Maryland before the organization of the District to be in the district, unless changed by statute. In the case of Hagthorp v. Hook's Adm'rs, 1 Gill & J. 270, it was held by the court of appeals of Maryland that the authority conferred by the letters of administration de bonis non, issued under the act of 1798, No. 101, c. 14, § 2, was 'to administer all things described in the act of assembly as assets not converted into money, and not distributed, delivered, or retained by the former executor or administrator under the direction of the orphans' court. Such an administrator can only sue for those goods, chattels, and credits which his letters authorize him to administer.'

To the same effect are the cases of Sibley v. Williams, 3 Gill & J. 52; Hagthorp v. Neale, 7 Gill & J. 13; and Lemmon v. Hall, 20 Md. 171.

In the case of Ennis v. Smith, 14 How. 400, it was said by this court:

'We understand by the laws of Maryland, ad they stood when congress assumed jurisdiction over the District of Columbia, that the property of a deceased person was considered to be administered whenever it was sold or converted into money by the administrator or executor, or in any respect changed from the condition in which the deceased left it. It did not go to the administrator de bonis non unless, on the death of the executor or administrator, it remained in specie or was the same then that it had been when it came to his hands. When the assets have been changed, it is said in Maryland that they have been administered.'

But counsel for appellant contend that this rule applies only to the case where an executor or administrator has died, and not to the case where he had been removed; that while the words 'not administered,' in the commission of an administrator de bonis non, still frequently mean not changed in form, yet, as applied to an administrator de bonis non in place of a living administrator, they have come to mean almost invariably not fully and legally administered, and it is said that this dis- tinction appears in the laws of Maryland in force before the organization of the District of Columbia, and continuing in force until the passage of the act of February 20, 1846, 'to enlarge the powers of the several orphans' courts...