Opinion
(June Term, 1831.)
1. Counsel fees paid by an executor in a suit brought against him, in which he was successful, cannot be recovered in an action on a bond conditioned to exonerate him from liability on account of his executorship.
2. The costs of a suit brought against the executor, which was decided in his favor, cannot be recovered in an action on such a bond. To constitute a breach there must be a recovery against the executor.
DEBT on a bond, executed by one John Sutton as principal and the defendant as surety. The plaintiff, in his declaration, assigned a breach of the following condition: "that if the said John Sutton, etc., do release, exonerate and discharge, in every way, manner and form, the said James Sumner, his heirs, executors and administrators, from the executorship to the will of Granbury Sutton, deceased, in as full and ample a manner as if he had never qualified thereto, then this obligation to be void, otherwise, etc." It appeared in proof that after the execution of the bond, one of the legatees of Granbury Sutton filed a bill in equity against Seth Sumner, executor of James Sumner, for an account of the estate of Granbury Sutton, which was finally decided in favor of the defendant (1 Dev. Eq. Cases, 338). It was admitted on the trial that the legal costs of the suit had been paid by the present defendant; but it further appeared that the plaintiff had paid, in addition to the taxed fees, $215 to counsel, for services rendered in that cause. Norwood, J., charged the jury that if the fees paid to the counsel were reasonable and customary, the facts in proof amounted to a breach of the condition. A (85) verdict was returned for the plaintiff, and the defendant appealed.
Hogg for plaintiff.
Gaston for defendant.
It does not appear to me that the suit brought by the legatee of Granbury Sutton against James Sumner's executors, which was decided against the plaintiff, was any breach of the condition of the bond on which the present suit is brought. The condition is, that "the plaintiff's testator should be released, exonerated and discharged, in every manner and form, from the executorship of Granbury Sutton, deceased, in as full and ample a manner as if he had never qualified thereto." I should not think that a breach of that condition would be committed if a third person should bring a wrongful action against James Sumner, as executor of Sutton, and have the suit decided against him, but that the condition was only intended to protect the executor, James, against any recoveries which might be made against him. It is unnecessary, however, to decide this part of the case. The parties seem to have given it a more liberal construction, because it appears that the costs of the suit of the legatee against James Sumner's executor were paid by the defendant in the present suit. And how that happened does not appear, as that suit was dismissed at the plaintiff's costs. Be that as it may, the present suit is brought for two hundred and fifteen dollars, extra fees, paid to counsel by the defendant in the same suit. If, according to the construction which the parties seem to have given to the condition of the bond, the condition extended to wrongful suits which might be brought against the executor, and also to costs which he might be bound to pay, it surely cannot extend to voluntary costs of his own creating. When the defendant in this suit paid the legal costs, he went as far as by any fair construction of the condition of the bond he was bound to go.
PER CURIAM. Judgment reversed.
(86)