Opinion
02-09-1858
TYLER & als. v. NELSON'S adm'x.
Lyons, for the appellant, insisted: Nance and Johnson, for the appellee, insisted:
1. A court of equity has jurisdiction in a suit by a high sheriff against his deputy and the sureties of the deputy to have a settlement of the accounts of several administrations upon estates committed to the high sheriff, and which went into the hands of the deputy. And the suit may be maintained though the deputy had settled the administration accounts before the probate court; and though the bill does not allege and it is not proved that the high sheriff had paid the balances reported to be due on the settled accounts, or any part of them.
2. Upon the death of the high sheriff the suit should be revived in the name of his personal representative, and not in the name of the personal representatives of the different estates, it being his suit against his agent.
3. The bond of the sureties for the deputy which was given during the first year of the sheriffalty, bound them to indemnify the high sheriff for the acts of his deputy during the continuance in office of the high sheriff. Their liability does not extend to indemnify the high sheriff for the acts of the deputy in relation to an estate committed to the sheriff during his second year of office.
4. The sureties of the deputy are liable for the amount of bonds taken by the first administrator on the estate, and after his death delivered by his administrator to the sheriff in the first year of his sheriffalty, as a part of the unadministered assets, after the estate had been committed to the sheriff.
5. Where an estate has been committed to the sheriff in the first year of his sheriffalty, the sureties of the deputy will be responsible for assets received by him after the end of the year.
6. What sufficient evidence that deputy had collected the bonds which had been delivered to him.
This was a bill filed in the Circuit court of Charles City county by Nathaniel Nelson, late high sheriff of the county, against John C. Tyler, his deputy, and three others, his sureties. The plaintiff qualified as high sheriff of the county of Charles City in March 1837, and also in March 1838; and John C. Tyler qualified as his deputy in both years. In 1837 said Tyler executed his bond in the penalty of fifteen thousand dollars, with John Tyler, Henry Curtis and Henry L. Jones as his sureties, with the condition that John C. Tyler should faithfully perform and discharge the duties of the office of deputy sheriff in the said county of Charles City during the continuance in office of the said Nathaniel Nelson as sheriff, and should indemnify and save harmless the said Nelson from all loss or damage he might sustain in consequence of the actings and doings or omissions to act of the said John C. Tyler in the office of deputy sheriff. In the year commencing March 1837 the estates of John Bell and William E. Barrow were committed to the sheriff of Charles City for administration, and went into the hands of the deputy sheriff Tyler; and in May 1838 the estate of Samuel B. Parker was in like manner committed to the sheriff, and went into the hands of Tyler. Subsequently Tyler settled the accounts of administration on these estates before the court of probate, and there was found due to the estate of Bell seven hundred and sixty-two dollars and ninety-two cents, with interest on seven hundred and seventeen dollars and ninety-seven cents, part thereof, from the 15th of June 1839 until paid; to the estate of Parker, the sum of five hundred and ninety-two dollars and forty-three cents, with interest on five hundred and four dollars and twenty-one cents from the 17th of May 1842; and to the estate of Barrow, the sum of ninety-seven dollars and ninety-eight cents, with interest on sixty dollars and forty-one cents from the 1st of July 1840.
The bill contained the foregoing facts, and charged that Tyler had not paid over the said several sums of money either to the parties entitled as representing said estates, or to the plaintiff. And in an amended bill it was charged that they had been demanded of the plaintiff. The prayer was for the payment over of the moneys due on account of said estates to the plaintiff; that all proper accounts should be ordered; and for general relief.
In November 1844 the bill was taken for confessed as to all the parties, and there was an order for an account of Tyler's transactions as deputy sheriff of Nelson on the estates of Bell, Parker and Barrow, and the accounts theretofore settled by Tyler were to be taken as prima facie correct. This report was made in 1846, based upon the settlements before the court of probate: and the commissioner reported that Tyler had declined to attend him, saying that he had no other settlement to make but the one on record; and was willing that should stand as it was. The report was excepted to by the securities of Tyler, on the ground, 1st. That Tyler was charged in the account of Bell's and Parker's estate, with the amount of bonds taken by a former administrator, and after his death delivered by his personal representative to Tyler as unadministered assets. 2d. That Tyler was charged with some of these bonds which had not been collected; and among these was a bond of Mary Bell, a distributee of the estate of John Bell, for three hundred and fifty-six dollars and fifty-five cents. 3d. That he was charged with moneys which were received by him more than twelve months after his qualification in March 1837. These defendants afterwards filed their answer, putting the same questions in issue.
The plaintiff having died, the suit was revived in the name of his administratrix; and the cause came on to be heard in November 1854, when the court having had a statement made excluding the bond of Mary Bell from the charges against the administrator, overruled all the exceptions, and made a decree against John C. Tyler and his three sureties, for nine hundred and thirty-five dollars and thirty-six cents, with interest on eight hundred and thirty-seven dollars and nineteen cents, a part thereof, from the 17th of May 1842 till paid, on account of Parker's estate; for the sum of four hundred dollars and seventy-five cents, with interest on three hundred and seventy-eight dollars and seven cents, from the 15th of June 1839, on account of Bell's estate, with liberty to ask further relief as to Mary Bell's land; and for the sum of ninety-seven dollars and ninety-eight cents, with interest, on account of Barrow's estate; and also for the costs of the plaintiff. And it was ordered that no execution should issue upon the decree against the sureties, until one had been first issued against Tyler, and had been returned " " no effects," either in whole or in part. From this decree the three sureties applied to this court for an appeal, which was allowed.
Lyons, for the appellant, insisted:
1st. That the sureties of the deputy sheriff were only responsible for his acts for the first year of the sheriff's term; the bond limiting it to that term. That this was the case as to the bond of the high sheriff, because his term of office is for a year only; Commonwealth v. Fairfax, 4 Hen. & Munf. 208; and so the bond of the deputy, when by its terms limited, as in this case, to the continuance of the sheriff in office, binds his sureties only for one year. Munford v. Rice, 6 Munf. 81.
2d. That the deputy sheriff had no authority to collect bonds payable to the first administrator, and therefore his sureties were not bound for the payment of the amount to the proper parties. Wernick's adm'r v. McMurdo, 5 Rand. 51; Cheatham v. Friend, 9 Leigh 580.
3d. That it was no where alleged in the bill that the plaintiff had been compelled to pay any thing on account of the moneys in the hands of Tyler; and therefore he could not aver any damage, so as to subject the sureties. Ray v. Clemens, 6 Leigh 600. And if he had any redress against them, his remedy was at law, and therefore the court of equity had no jurisdiction.
4th. That the suit should have been revived in the name of the representative of the intestate's estate, and not in the name of Nelson.
Nance and Johnson, for the appellee, insisted:
1st. That the bond of the sureties covered the transactions of both years in which Nelson was sheriff and Tyler was his deputy. Royster v. Leake, 2 Munf. 280. And that where an administration has been commenced by a sheriff, he is bound to complete it, even after his term of office expires. Mosby's adm'r v. Mosby's adm'r, 9 Gratt. 584. And if his deputy has farmed the office, he is bound to complete it, and his sureties are bound for him. Id. 584; Dabney's adm'r v. Smith, 5 Leigh 13; Douglas' ex'or v. Stump, Id. 392.
2d. That though it is true that an administrator de bonis non cannot sue the prior administrator to recover assets which have been converted by the latter, he may sue where the assets are not so converted, for the recovery of them. But however this may be, the bonds having been transferred to Tyler, and he having received them, his sureties are liable. Mosby's adm'r v. Mosby's adm'r, 9 Gratt. 584.
3d. That it was not necessary that the plaintiff should have been compelled to pay the money before filing his bill. Mosby's adm'r v. Mosby's adm'r, 9 Gratt. 584; Cox v. Thomas' adm'x, Id. 323.
4th. That the suit was properly revived in the name of Nelson's administratrix. This suit was not brought as administrator of any or all of the estates committed to him, but in his own right, to recover from his agent moneys for which he was responsible, and for which he was the proper person to account to the persons interested in these estates.
LEE, J.
Of the questions raised in this case the first to be considered is that of the jurisdiction of the Court of chancery.
The case is one essentially for an account. It involves the transactions of the deputy as the acting administrator of three several estates. The settlement of the accounts was of course to be made upon the same principles which would govern if the settlement were made in a suit by creditors or distributees against the sheriff himself as administrator, because the deputy and his sureties would be liable to the sheriff in the same amount for which he was liable to those entitled to call him to account. And that the sheriff might have had a remedy by an action on the bond should not in this case exclude the equity jurisdiction. The remedy at law could not be as ample and complete as in equity. The accounts could not be as well settled by a jury as by a commissioner in chancery; and although there had been an ex parte settlement made in each case, yet it might still be shown upon a settlement under the order of the court, that the amounts really due and for which the high sheriff would be liable, were greater or less than those ascertained upon those ex parte settlements. In point of fact the court did forbear at the time of its decree to charge the parties with a large portion of the amount appearing to be due to the estate of John Bell upon a suggestion by the deputy that he had never collected the bond of Mary Bell which constituted a part of the assets supposed to have come to his hands. Moreover it might turn out (as indeed, it will appear in the sequel, it did turn out), that whilst the deputy might be liable upon all three accounts as claimed, the sureties might be liable for part only. But the law court could of course only give one judgment in the case and that for the amount due from those jointly bound; whilst the court of equity could adjust the several liabilities and decree against the deputy separately as well as against him and his sureties jointly, according to the ascertained liabilities; and thus to a certain extent multiplicity of suits by the sheriff for the short comings of his deputy would be avoided.
In these views I think the jurisdiction of the court is sufficiently vindicated.
But it is said that if the court could entertain the bill, yet that upon Nelson's death the suit was improperly revived in the name of his administratrix, and could only have been properly revived in the names of the administrators de bonis non of the several decedents Barrow, Bell and Parker. This suit however was not brought by Nelson as administrator of those parties, but in his own right, individually. It was not to recover specific chattels belonging to those estates nor assets still in the hands of the acting administrator and unconverted, but it was to obtain indemnity from the deputy and his sureties against the default of the former by holding him to an account of his transactions as acting administrator for which the sheriff was responsible to those interested in the several estates. I think it clear therefore that the suit was well revived in the name of Nelson's administratrix.
Another ground of error assigned is that a large portion of the moneys for which the sureties were held responsible was received by the deputy after the expiration of the year during which they became bound for his acts, and it is urged that they should not be charged with moneys received by him during the second year of Nelson's shrievalty.
It appears that the assets of the estate of the decedent Bell that came to the hands of the deputy sheriff, were received by him in the year 1837 which was the first year of Nelson's shrievalty; but that those of the estates of Barrow and Parker did not come to his hands until after the commencement of Nelson's second term. But the estate of Barrow was committed to the sheriff during the first year of Nelson's shrievalty and whilst Tyler was his deputy for whom as such the sureties had become bound to the sheriff. It was of course the duty of the sheriff to complete the administration whether before or after the termination of his office; and the deputy who had undertaken the duty of the acting administrator within the year was authorized and it was his duty to do what the sheriff himself could do after the expiration of the term, to bring the affairs of the estate to a close. The sheriff and his sureties are answerable for the deputy's administration as well before as after the expiration of his office, just as they would be for the acts of a deputy in relation to an execution levied by him during his term of office. Dabney's adm'r v. Smith, 5 Leigh 13; Douglas' ex'or v. Stump, Id. 392. And as the sheriff and his sureties would thus be answerable for the deputy's acts after the year, it would seem very clear that the sureties of the latter would be responsible for the same to the sheriff upon their bond. Miller v. Jones, 9 Gratt. 584, 610.
But although in this view the sureties of Tyler must be held responsible for the assets of the estates of Bell and Barrow that came to his hands whether before or after the expiration of the term commencing in 1837, I can see no ground on which they can be held liable for the assets of the estate of Parker which was not committed to Nelson as sheriff to be administered until after the expiration of the term for which they had become bound. The appointment of the sheriff was for one year and the term of the deputy under his appointment would not extend beyond that of his principal. The words therefore of the bond descriptive of the term for which the sureties of the deputy had become responsible for his acts to the sheriff, to wit " during the continuance in office of the said Nathaniel Nelson" must have reference to the actual duration of the office under which the bond was given and which was for the year beginning in March 1837. If this could be otherwise at all doubtful, it must now be regarded as settled by the decisions of this court. Commonwealth v. Fairfax, 4 H. & M. 208; Munford v. Rice, 6 Munf. 81. In the former case it was held that upon the construction of the act, the sheriff was to be annually appointed and commissioned, and should annually give bond conditioned for the faithful discharge of the duties of the office; and accordingly that where a sheriff had been commissioned for one year only, and had acted the second year without a new nomination and commission and without having renewed his bond, the sureties in his bond were not liable for taxes collected by him during the second year, notwithstanding the condition of the bond was for the faithful performance of his duties during his continuance in office. In Munford v. Rice it was held that the sureties of a deputy sheriff who had given bond (as in the case before us) to indemnify the sheriff were only liable for the transactions of one year and not for those of a second year during which the deputy had acted as such although the bond was conditioned for the faithful performance of his duties " during his continuance in office; " the court distinguishing this case from that of Royster v. Leake, 2 Munf. 280, in which a bond dated 15th November 1802 and conditioned for the faithful performance of the duties of the deputy during his continuance in office until November court 1804, was upon its particular phraseology held binding upon the sureties for the year ending at November court 1804 as well as the previous year, and until the winding up of the business lawfully committed to him as deputy.
This case falls clearly within the principles established by these cases and in its material facts is not to be distinguished from the case of Munford v. Rice.
As another ground of error the appellant insists that Tyler the deputy, had no authority to receive and collect bonds payable to the former administrators of Bell and Parker and therefore that his sureties were not liable for the amounts thus received.
This question is of no importance so far as it affects the estate of Parker, because as we have seen, the sureties are not to be charged with any thing received by Tyler on account of that estate, but it is important as it respects the estate of Bell because all the assets of that estate that came to Tyler's hands consisted of bonds turned over to him by the administratrix of Ladd the former administrator.
I think the position contended for by the counsel on this head cannot be maintained. It is true that an administrator de bonis non cannot sue the representative of a former executor or administrator either at law or in equity, for assets wasted or converted by him; such waste or conversion is an administration of the assets and the suit to recover them must be brought by creditor's legatees or distributees. Wernick's adm'r v. McMurdo, 5 Rand 51. But all the assets not altered or converted by the former executor or administrator, are to be regarded as unadministered, and these pass to the administrator de bonis non and not to the representative of the first executor or administrator. 4 Bouvier's Bac. Ab. (ed. 1846) title " Executors and Administrators," B. 2, p. 24; Wankford v. Wankford, 1 Salk. R. 299, 306; Rutland v. Rutland, 2 P. Wms. 210; Attorney General v. Hooker, 2 P. Wms. 338. And choses in action may pass as unadministered assets to the administrator de bonis non. Thus if a bill of exchange be endorsed generally and delivered to an administrator for a debt due the estate of his decedent, and the administrator die after the maturity of the bill, the bill vests in the administrator de bonis non of the first decedent, and he may sue thereon. Catherwood v. Chabaud, 1 Barn. & Cress. 150, 8 Eng. C. L. R. 45. So a promise to an administrator will be a sufficient foundation for an action on behalf of the administrator de bonis non. Hirst's adm'r v. Smith, 7 T. R. 182. And upon a judgment recovered by an executor as such, the administrator de bonis non of the first decedent may maintain debt on a scire facias. Dykes & Co. v. Woodhouse's adm'r, 3 Rand. 287. Sometimes too where there might be said to have been a conversion at law it will not be so regarded in equity: as if the first administrator were to invest money of his intestate in the public funds or to transfer it from one fund to another. This as it showed no intention to make the money his own, would not be considered in equity a conversion. Per Carr, J., Wernick v. McMurdo, 5 Rand. 51, 57. And bonds taken by an executor or administrator for property belonging to the estate of his decedent and lawfully sold by him and remaining uncollected at the time of the death of such executor or administrator might be claimed in equity by the administrator de bonis non. Per Green, J., Ibid. 90. And this doctrine has been affirmed in a recent case in which it was held that where it is not necessary that the bonds should be retained by the representative of the first executor or administrator for the indemnity of the estate of his decedent, they might be confided as unadministered assets to the administrator de bonis non. Clarke v. Wells' adm'r, 6 Gratt. 475.
Now the bonds turned over to Tyler as the acting administrator de bonis non of Bell were taken payable to Ladd in his character of administrator of Bell; they were it is to be presumed for the proceeds of property of the estate properly sold; they were kept separate and treated as the assets of that estate; it was not necessary they should be retained by the administratrix of Ladd to indemnify her estate, and she accordingly turned them over to Tyler as administrator de bonis non to be administered by him. In such a case Judge Green would seem to be of opinion that such a delivery of the assets would discharge the estate of the deceased executor or administrator from any claim by creditors, legatees or distributees for the assets so turned over. Wernick v. McMurdo, 5 Rand. 51, 94. And where an administrator de bonis non has the right to recover unadministered assets of the first executor or administrator and actually receives them, certainly the payment of them would be good and would protect the estate of such first executor or administrator from any further liability for them.
The question discussed in the cases above referred to was as to the right of the administrator de bonis non to recover by suit assets in the hands of the previous executor or administrator. But if the assets have been voluntarily paid over to the administrator de bonis non and received by him colore officii as assets of the estate of his decedent, there can be no doubt of his liability to account for them. The intention to convert or not to convert is regarded as a criterion by which to determine the fact of conversion, and payment by the representative of the first executor or administrator to the administrator de bonis non, is to be taken as an admission that the assets had not been converted. Per Judge Green as above cited, p. 51, 94. And the question here is not whether the administrator de bonis non could recover of Ladd's administratrix, nor whether the latter was discharged by turning over the bonds to Tyler, but whether Tyler and his sureties are liable for the assets thus received. In Mosby's adm'r v. Mosby's adm'r, 9 Gratt. 584, administration de bonis non of an estate was committed to a sheriff, and his deputy the acting administrator received the rents and profits of the real estate of the decedent; and it was held that whether the high sheriff was authorized to receive the rents and profits of the land or not, yet as the estate had been committed to him and his deputy had taken possession of the land and received the rents and profits, the high sheriff was bound to account for them; and that the deputy and his sureties were liable to the high sheriff for all rents and profits for which he was liable to those interested in the estate; the liability of the obligors in the deputy's bond as well sureties as principal, says Judge MONCURE, " seems to follow as a necessary consequence." Ibid. 584, 610.
The case just cited I think covers in principle the whole ground of the present case, and more, for I think the reasons for holding the sureties responsible in this case are even stronger than those in the former.
Another ground of error assigned is that there is no proof that the bonds received from the former administrator had been paid to or collected by Tyler. The bonds were turned over to him by the administratrix of Ladd in July 1837 and were all due on the 1st of August in that year. They were delivered to him for the purpose of being collected as assets of the estate of Bell and it was his duty to proceed to collect them without unnecessary delay. He settled the account of the administration on the 27th July 1843, in which he charged the administrator with the whole amount of these bonds as of the day on which they fell due. He made no suggestion that any of them had not been or could not be collected. He never at any time surrendered or offered to surrender any of them to Nelson, nor did he produce them before the commissioner when he settled the account in 1843 or afterwards under the order of the court in this cause in 1846; and when called on by the commissioner when he was about to make the last settlement, he stated that he had no other settlement to make than the one of record and was willing it should stand as it was. And when the decree was about to be pronounced, he made no objection to being charged with any of these bonds except the one on Mary Bell which he then for the first time alleged he had not collected. That bond was accordingly reserved by the court by its decree. I think the proof that he had collected all the rest was most satisfactory if not conclusive.
The last objection to be noticed is that there is neither allegation nor proof that any recovery had been had of the sheriff, and therefore he had no right to recover of the sureties of the deputy. It is true it is not alleged that any judgment or decree had been rendered against the sheriff, nor that he had paid the amount due. Nor was it necessary it should be. It was sufficient if it was alleged and proved that by the transactions of the deputy as the acting administrator, the high sheriff had been rendered liable to those interested in the estates. That this is sufficiently done seems clear. It is alleged and proved that Tyler settled the accounts of the estates as required by law, in obedience to the orders of the County court of Charles City, and those settlements were returned to the court and ordered to be recorded as the law directs. They showed the balances due from Nelson the administrator and rendered him liable for the same to those entitled to the assets. That the true amounts might have been shown by proper proceedings, to be greater or less than those ascertained by the settlements did not impair their legal effect. Unless and until so shown, those amounts were to be taken as they stood, and the settlements constituted a sufficient basis of recovery by those entitled against the high sheriff, and by him against the deputy and his sureties. That it is not necessary the sheriff should have actually paid the amount for which he is liable in such a case sufficiently appears from the case of Miller v. Jones, 9 Gratt. 584, 609, in which the sheriff was permitted to maintain his action against the deputy and his sureties although he had not paid any part of the amount for which he had been rendered liable by the default of the deputy. The condition of the bond in that case as stated by Judge MONCURE in his opinion, was perhaps somewhat different from that of the bond in the present case. Still I apprehend that as Tyler had by his acts, as deputy, rendered Nelson liable to a recovery of the amounts appearing due on the accounts stated, there was a sufficient breach of the bond to sustain his right to seek the indemnity which it was intended to provide.
I think therefore there was no error in the decree except in charging the sureties of Tyler with the amount ascertained to be due to the estate of Parker; and am of opinion to reverse so much as makes them liable for that amount, and in lieu thereof, to render a decree for the same against the deputy, John C. Tyler alone, and in all other particulars to affirm the decree.
The other judges concurred in the opinion of LEE, J.
AFFIRMED in part, and REVERSED in part.