Opinion
June Term, 1828.
From Warren.
1. Creditors have a right to assign the nonpayment of their debts as a breach of the administration bond, and to put it in suit.
2. The rule of damages is the amount of the judgment against the administrator, where one has been obtained.
DEBT upon the bond given by one John Brodie, upon taking out letters of administration on the estate of one Alexander Brodie, to which bond the defendant's testator was surety.
Seawell for the defendant.
Gaston and Badger on the other side.
The condition of the administration bond was in the usual form, and the breach assigned was the nonpayment of a debt due the relator by the intestate, upon which he had obtained a judgment against the administrator, and nulla bona intestati was returned.
After oyer the defendant pleaded performance of the condition.
Upon the trial before Martin, J., the plaintiff produced the record of the suit between him and the administrator, in which the latter was fixed with assets and from which it appeared that the original debt was secured by a bond for $1,333 1/3, to be void upon the payment of half that sum; but the verdict and judgment were for the penalty of the bond, as the interest had increased the debt to that amount.
The jury, under the instruction of the presiding judge, returned a verdict for the plaintiff for the full amount of the judgment against the administrator, with interest up to the trial, and the defendant appealed.
If we were now, for the first time, putting a construction upon the act of 1715, requiring administrators, etc., to give bond, I think we should have but little doubt that the bond required by that act should be confined to the administration of the estate so far only as regards the interest (478) of the next of kin; that nothing could be assigned as a breach of it but what tended to their injury; and that all the duties prescribed in the condition would be regarded as subservient to their claims, and not to those of creditors. If any doubts could have been raised upon the point, I think that they would have been removed by the very able and lucid historical argument of the counsel for the defendant. And notwithstanding the case of the Archbishop of Canterbury v. House, I think such is and uniformly has been the rule, in the English courts, upon the statute of Charles. Lord Holt, very soon after its passage, declared that it did not extend to creditors, and that it was made for the benefit of the next of kin only. Greenside v. Benson and Thomas v. Archbishop of Canterbury fully show what has since been the understanding of their courts. As to Archbishop of Canterbury v. House, it does not appear from it what was the breach assigned, although the bond had been delivered to a creditor, and he was carrying on the suit in the Archbishop's name; for aught that appeared, it might be for an act in which the next of kin were concerned, the more especially as otherwise we cannot reconcile what fell from Lord Mansfield, that he knew of no case or principle which prohibited the ordinary from delivering the bond to any person to sue upon, in his, the ordinary's name, with the case of the Archbishop of Canterbury v. Wills, as it cannot for a moment be believed that he was ignorant of the opinion delivered by Holt in that case. But be this case as it may, it is in opposition to all that has gone before or has come after it, if from it we are to understand that the nonpayment of a debt can be assigned as a breach of an administration bond. Upon principle a satisfactory reason can be assigned why administrators should give bond to distribute among the next of kin, and executors should not, and also that as executors were not to give bond to pay the debts, a fortiori administrators should not. The legatee claims from the bounty and free will of the (479) testator, and it is the testator that appoints the executor, thereby directing who is to pay the legacy. The legatee must take as the testator gives, and as the testator has made the selection to whom he will confide the management of his affairs, and not having thought proper to require surety to pay the legacies, it would seem very unfit that a legatee should demand it, unless in a case where there is a disposition manifested by the executor to waste the estate. In this case a court of equity will compel the executor to give surety, but it is upon the ground that if the testator could have foreseen his unfaithfulness he would not have committed the trust to him. On the other hand, an administrator is selected by the court; the deceased had no hand in his appointment; the distributees do not claim from him as an agent appointed by the deceased, but one appointed by the court. It is proper, therefore, as he is put into his office by law, that the law should require surety that he will distribute according to law. As to the position that as executors are not required to give bond to pay debts, a fortiori an administrator should not, I think it follows from this: A creditor claims not under the will or bounty of the testator. There is therefore no reason why he should be bound to acquiesce in the appointment which the debtor may think proper to make. There is no check upon the claim of the debtor as to whom he may select as his executor. He may appoint the most worthless man in the community, who is notwithstanding entitled by law to the executorship, and although it is true that a creditor may compel him, in a court of equity, to give surety for a faithful administration, yet that is an after thing, and affects not the principle. An administrator, however, is appointed by the court. It is true that the choice is confined to the widow or next of kin, and, if they refuse, to the creditors. Yet this affords some opportunity for a choice, and will generally enable the ordinary (480) to make a more judicious selection than the most worthless man in the community, whom the testator may appoint executor if he pleases. This is the fair way of stating the question. If either the one or the other should be exempt from giving surety for the payment of debts, I think it ought to be the administrator. But at any rate this reason is sufficient for the purpose for which the subject was introduced, viz., to show that the reasons are equal to compel both to give surety, or to require it from neither. However, as far back as we have any knowledge of the construction put upon the act of 1715, with the exception of one case at Hillsboro, before Judge McKay, it has uniformly been considered by all persons, the people, the bar, the bench, and the Legislature, that the nonpayment of a debt was a breach of an administration bond. The Legislature has so considered it independently of and long before the act of 1807, requiring executors in certain cases to give bond, where a very plain opinion is expressed that administrators were bound by their bond to pay the debts out of the assets; for the construction put upon these bonds was matter of notoriety, and they did not interfere.
After such an uniform opinion upon the subject for such a length of time, it would be the height of impropriety to give a different construction to the act. It would unsettle and render insecure too much property. In some cases this may be our duty, where the misconception is glaringly and manifestly wrong. But in this case it is not so; the breach by the nonpayment of a debt is within the words of the bond, without a very shrewd construction. The words are, "and the goods and chattels which shall come, etc., do well and truly administer according to law." And to show that a maladministration of the assets by failing to pay creditors is not within these words, we are under the necessity of going into a long historical argument, which may possibly lead us to a wrong conclusion. When we see the long and uniform custom of the country, so well — at least so firmly — established as this is, we have no moral right to disturb it, although we should be of opinion that (481) the words were not originally correctly understood.
The judgment should be for the debt recovered in the original suit, with interest to the time of rendering the judgment in this case in the court below. The failure to pay that sum, when thus judicially ascertained, was the default imputed to the administrator, and which he, having assets, ought to have paid; also the costs of that suit, but not with interest thereon, for plaintiff did not show that he had paid them.
PER CURIAM. Judgment affirmed.
Approved: Smith v. Fagan, 13 N.C. 298; McLane v. Peoples, 20 N.C. 137, 140; Strickland v. Murphy, 52 N.C. 247.