tled next in order. But in England the cases are frequent where the amount of the bond ordinarily required, i. e. double the amount of the estate, is essentially relaxed.58 If anything is ever done here, in the same direction, it is by accepting the best sureties which the party can procure, which, perhaps, is more American, coming to the same result, without any formal violation of the letter of the law, but none the less evading it. SECTION II. THE APPOINTMENT OF ADMINISTRATORS, AND THE EXTENT OF THEIR RESPONSIBILITY. JOINT EXECUTORS AND ADMINISTRATORS. BONDS. 1. The mode of appointing administrators. n. 1. The English form at present in use. 2. The form and legal validity of administrators' bonds. 3. The decisions in Massachusetts upon this point. 4. The form of executors' bonds. 5. How far joint executors responsible for the acts of each other. 6. A final judgment in the probate court should precede a suit upon the bond. 7. The bond is intended to secure the enforcement of the decrees of the probate court. §8. 1. THE appointment of an administrator is, in the American practice, more commonly, it is believed, in the form of a decree of the probate court. In the English practice, it is said that it must be by writing, under seal, or by entry in the registry, without letters sub sigillo, but it cannot be by parol.1 "De la Farque in re, 2 Sw. & Tr. 631; McDonald in re, 32 Law J. Prob. 132; Harrigan in re, id. 204. And sureties resident in Scotland were accepted when others could not be procured. Ballingall, id. 138. 1 1 Anonymous, Shower, 408, 409; Toller, 119. The form of granting administration in the English Court of Probate, at the present time, is as follows:"In Her Majesty's Court of Probate, the Principal Registry. Be it known that, on the - day of, &c., letters of administration of all and singular the personal estate and effects of A. B., late of, &c.- deceased; who died on or about the - day, &c., at intestate, were granted by Her Majesty's Court of Pro The same is true of granting leave to put an administrator's bond in suit.2 2. The person appointed, before receiving his letters of administration, is, by the statutes of all the states, required to give bonds for faithful administration, the same, in most respects, as required by the English statutes,3 except that in different states the bond is required to be taken in the name of the commonwealth, or of the judge of probate, or of the probate court.* But in the last case cited it was held that the bond, being taken in the name of the justices of the county court, did not render it void. But in some of the other states slight deviations from the statutory forms required has been held to avoid the instrument, as where the bond of an administrator, with the will annexed, was taken in the usual form of administrators' bonds on intestate estates, except that there was no obligation to restore the letters to the court in case of the production and proof of a will, and it omitted the clause "to pay and deliver all the legacies," merely requiring faithful administration and bate to C. D. the widow, or next of kin, (as the case may be,) of the said intestate, she having been first sworn, well and faithfully to administer the same, by paying his just debts, and distributing the residue of his personal estate and effects according to law, and to exhibit a true and perfect inventory of all and singular the said estate and effects, and to render a just and true account thereof whenever required by law so to do. E. F., Registrar." And in the margin is written, "Sworn under £. And that the intestate died on or about the 3 day of These statutes re 1 3 21 Henry 8, ch. 5, § 3; 22 and 23 Car. 2, ch. 10, § 1. quired two or more able sureties, respect being had to the value of the estate, which was to be in the name of the Ordinary. The points of the obligation were, to return an inventory of the goods; faithfully to administer the same; to render a true account to the court; to pay over the balance in his hands according to the decree of the court. Miltenberger v. Commonwealth, 14 Penn. St. 71; Johnson v. Fuquay, 1 Dana, 514. Walker v. Crosland, 3 Rich. Eq. 23. A similar decision was made in Williamson v. Williamson, 3 S. & M. 715; and in Small v. Commonwealth, 8 Penn. St. 101. payment according to the decree of the court; and it was held void as a statutory obligation, and that it could not be enforced by a legatee against the principal and his sureties. But the omission of the provision for the benefit of creditors will not avoid the effect of that in favor of distributors. But if the bond contain no obligation on their behalf, they can maintain no action upon it. It has sometimes been held that such a bond, with but one surety, is absolutely void. But in a later case the rule is somewhat modified.9 And such a defect in the bond will not defeat the suit in the name of the administrator. 3. In Massachusetts there have been a considerable number of decisions in regard to administration bonds. If not signed by the administrator, it is not binding, even upon the sureties.10 And if altered, after being signed by two sureties, with the consent of the principal only, and then signed by two other sureties, ignorant of the alteration, it is not binding upon any of the sureties not upon the two first, because altered without their consent; not upon the other two, because not informed of the release of the two former.11 4. Where the statute prescribes the form of an administrator's bond, and requires executors to give bonds in the same form, the bond of the latter may be so far varied from the form as their duties are different from those of an administrator.12 An executor's bond, where each surety was bound in half the sum of the principal, although informal, is not on that account void, but is binding upon the obligors and sufficient to give effect to the appointment.13 * Carrol v. Connet, 2 J. J. Marshall, 195. "Hall v. Cushing, 9 Pick. 395. 13 Baldwin v. Standish, 7 Cush. 207. It seems, that where the bond is wholly 5. It seems that where joint executors execute a joint bond for faithful administration, both are responsible for all the acts of the other during the continuance of the joint executorship.14 But if, after the decease of one of them, the other is guilty of a devastavit, for which his sureties are held responsible, they have no claim for indemnity against the heirs, devisees, or legal representatives of the other executor.14 One joint administrator is liable solely for the debts contracted by him in the settlement of the estate. They are not covered by the bond.15 6. There is ordinarily no liability, upon an executor or administrator's bond, in behalf of a creditor, legatee, or distributor, until after a final decree in the probate court against such executor or administrator for the payment of the sum due such creditor, legatee, or distributee.16 And in an action upon such bond it is not competent to show fraud in the recovery of the judgment against such executor or administrator, or that in rendering his account before the probate court he was guilty of fraudulent void, some judges have considered the appointment void. - Parker, Ch. J., in Picquet, Appellant, 5 Pick. 76. But unless the form of the statute naturally leads to this result, upon general principles, the omission of any such formality could not avoid the appointment. 14 Brazier v. Clark, 5 Pick. 96. See also Hill v. Davis, 4 Mass. 137; Towne v. Ammidown, 20 Pick. 535. Newcomb v. Williams, 9 Met. 525. The same question has arisen often in the different states, and has been regarded as settled in the manner stated in the text, from an early day. The question is a good deal examined in the case of Sparhawk v. Buell's Admr. 9 Vt. Rep. 41, and the following propositions declared. One executor is not liable for the devastavit of another joint executor, where he never had control or possession of the funds; but if both take possession jointly, or if one having possession of the goods suffer them to go into the hands of another executor, who squanders them, both are liable for the waste. If executors give a joint bond for faithful administration, each is liable for the acts of the others. This last proposition is maintained in Boyd v. Boyd, 1 Watts, 368. 15 Taylor v. Mygatt, 26 Conn. 184. 16 Probate Court v. Van Duzen, 13 Vt. Rep. 135; Williams, Ch. J., in Adams v. Adams, 16 Vt. Rep. 228. suppression of facts, thereby lessening the amount for which he was found liable.17 7. The ordinary bond for faithful administration is not intended to transfer the jurisdiction of questions connected with such administration from the appropriate and exclusive sphere of the probate courts to that of the common-law courts. But these bonds are designed to secure the enforcement of the decrees of the probate court, after they are rendered against the executor or administrator, whereby his breach of duty is established in the proper forum. Hence if the executor or administrator fails in the performance of the particular duties specified in the condition of the bond, the proper course for redress is to cite him before the probate court, and there compel him to render an inventory of all the effects of the deceased, and to administer the same in that court. For if redress is sought, by way of suit upon the bond in the first instance, nothing more than nominal damages can be recovered at most, since the recovery of damages by a particular claimant will not put the goods, omitted to be inventoried, in the way of administration. Or the executor or administrator may be cited, in the first instance, to render a final account of his administration, the term assigned by law having expired. In this mode a final decree of distribution may be obtained against the personal representative for the payment of debts and legacies, or the shares of distributees, ast the case may be. And where upon such citation the personal representative fails to appear, the probate court will pass a decree against him, as by default. And in every case, after obtaining such final decree against an executor or administrator, the bond may be resorted to by way of suit in the common-law courts.18 "Paine v. Stone, 10 Pick. 75. " Adams v. Adams, 21 Vt. Rep. 162; French v. Winsor, 24 Vt. Rep. 402. |