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Annett agt. Kerr.

NEW YORK SUPERIOR COURT.

ALEXANDER ANNETT, administrator, &c., respondent, agt. THOMAS KERR, and others, appellants.

Where an administrator has been removed on the application of his sureties, after filing his account, and another administrator appointed in his place, the latter administrator cannot bring an action upon the bond of the former in his own name under the Code, as the real party in interest, to compel payment over of the funds belonging to the estate in his hands. The action on the bond should be prosecuted in the name of the people.

The surrogate's decree directing the assignment of the bond to the new administrator for the purpose of such prosecution, is without jurisdiction and void.

THIS was an action against the defendant Kerr, as administrator of John Strahan, deceased, and his sureties, on his bond to the people of the state, given on the issuing of letters of administration to him in 1858. It was conditioned "faithfully to execute the trust reposed in such administrator, and obey all orders of the surrogate of the county of New York, touching the administration of the decedent's estate." In January, 1862, such administrator applied to such surrogate finally to settle his account as such, and after the issuing and service of a citation on the parties interested, filed his account in April following. In June following (9th), exceptions were filed to such account on behalf of the widow and next of kin of the decedent. Some time between that time and the 13th of the same month, but when does not appear by the case, the defendant Kerr was removed as administrator, on the application of his present co-defendants (Terry and Thompson), his sureties on his bond. At the last date the plaintiff was appointed administrator in his place, and three days afterwards (16th June), applied to such surrogate by petition, to compel the defendant Kerr to render an account of his proceedings as administrator, and show cause why the assets in his hands as such, "should not be delivered over

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Annett agt. Kerr.

to the petitioner. In the beginning of July following, the attorneys for the plaintiff and the defendant Kerr, stipulated in writing to bring on the settlement of the matters involved in such petition on the 15th of that month, and the same attorneys with the attorney for a special guardian of one of the next of kin of the decedent, agreed to allow the account previously filed by such administrator in April, to stand as his account, and the exceptions filed thereto as exceptions of the next of kin and widow. A motion founded on such account and exceptions, for such decree as such surrogate might think proper to grant, noticed for the 16th of December following (1862), was made on the 15th of that month, without the presence of the defendant Kerr, or any one on his behalf. Such account as previously filed was then settled and adjusted by such surrogate, showing a balance in the hands of such defendant of upwards of eighteen hundred dollars. Such surrogate, by a decree containing such settlement as then made, ordered the defendant Kerr, after retaining a certain sum ($165.57) for his commissions, to pay him a certain sum ($54.50) for the costs and expenses of such proceeding, to the proctors for the special guardian before mentioned (Messrs. Mathews & Swan), a certain sum ($200), and a certain other sum to the proctor for the wife and daughter of the decedent $100) for their respective costs, and the residue, being a little above thirteen hundred dollars, to the plaintiff. Proof of the service of such notice of motion consisted only of the recital thereof in the decree so made by the surrogate. Such decree was docketed in the New York county clerk's office, and an execution issued thereon to the sheriff of the same county was returned unsatisfied. The surrogate of such county in January, 1863, ordered such administrator's bond to be assigned to "the said John P. Crosby and others, for the purpose of being prosecuted," and in April following, he jointly with Messrs. Mathews & Swan, and Crosby,

Annett agt. Kerr.

executed a formal assignment of such bond under seal to the plaintiff.

MATHEWS & SWAN, for special guardian.

By the court, ROBERTSON, C. J. The bond in this case being to the people of the state, no action could be brought upon it at law as a bond, except when authorized by such obligees, in other words, by statute or equivalent authority. In a proper equitable case an action might perhaps be maintained upon it as a stipulation or judicial recognizance (Carow agt. Mowatt, 2 Edw. ch. 57), but then only by the officer in whose hands it is deposited (Bolton agt. Powell, 14 Beav. 2; De G. M. & G. 1), although even that has been doubted (14 Beav. 290, 291).

The complaint in this action, however, shows only the case of a revocation of the letters of administration of the defendant Kerr (without stating the cause), a decree against him on an alleged final accounting, and the return of an execution on such decree after docketing it unsatisfied. It also alleges an assignment by such surrogate of such bond to the parties in whose favor such decree was made (of whom the plaintiff is one), and the second assignment of it by them to the plaintiff. No special equity is, therefore, presented by such a case. It would seem that before the passage of the Revised Statutes, an action could be brought upon such a bond whenever any of its conditions were violated by parties prejudiced thereby (People agt. Dunlap, 13 J. R. 437), but only in the name of the people.

The first question that arises, therefore, is whether the plaintiff can bring an action in his own name under the Code on such bond, as the real party in interest (§§ 111, 113). The former mode of entering up judgment in a suit on a bond for the penalty in case of a breach, to stand as security for future breaches being abolished, it is difficult to say how the sureties can avail themselves in future

Annett agt. Kerr.

actions for breaches of such bond, of their payment of any money recovered by the present plaintiff in this. It would seem, therefore, that the action should have been brought in the name of the people, so as to make the parties in each successive action the same, unless by statute or a surrogate's decree the plaintiff acquired such an interest in the bond as to entitle him to bring an action in his own

name.

The statutes of this state have, however, provided for every contingency in which it might be necessary to prosecute an administrator's bond, and regulated the prior steps for instituting an action thereon. The mere fact of so prescribing cases for such prosecution, would seem by implication to deny the right in all others. Unless the provisions of the Revised Statutes giving to letters of administration issued after the revocation of prior ones for the evasion by the administrator of personal service of a suтmons to render an account, or his remaining imprisoned a certain time for not doing so (2 R. S. 92, § 53), "the like effect" as it gives to those issued after a like revocation for omitting to file an inventory or avoiding service of a summons to compel it, also thereby gives the right of prosecution on such bonds, such statutes only expressly allow such right in the latter case (2 R. S. 85, § 21). The right of recovery in such prosecution was by such latter provision extended to unliquidated damages for any injury to such estate by any act or omission of such removed administrator, besides the value of any property unadministered. The whole amount as recovered, was to be assets in the hands of the new administrator (Id). Probably on account of the restricted character of such provision, the legislature in the same year in which the Revised Statutes went into effect (1830), passed a law authorizing the surrogate to cause an administrator's bond to be prosecuted whenever he omitted to perform a decree for the payment of money, and to apply himself the moneys recovered to the

Annett agt. Kerr.

satisfaction of such decree (Laws of 1830, ch. 320, § 23), thus leaving the control of the proceedings with that officer. But such prosecution was still restricted to cases of decrees on rendering an account or a final settlement, or for debts, legacies or distributive shares (Id). But in 1837, the legislature gave a cumulative and more extended remedy (People agt. Guild, 4 Denio, 551), in every case of a surrogate's decree against an administrator for the payment of money. (Laws of 1837, p. 535, §65; Laws of 1844, p. 90, §§ 1, 2.) But the party thereby allowed to prosecute such bond was required to have prior thereto, an execution upon such decree docketed in a county clerk's office, returned unsatisfied (Id). No such privilege was, however, given in either of the statutes of 1830 and 1837, merely upon a revocation, as was given by the Revised Statutes.

The right to prosecute such administrator's bonds at all in this case, if the statutory provisions just referred to are exclusive, as the surrogate's order is not sufficient unless based on proper proceedings (People agt. Barnes, 13 Wend. 92; People agt. Corlies, 1 Sandf. R. 228), must depend on the plaintiff's bringing it within the statutes of 1830 and 1837, since the revocation of the letters of the defendant Kerr does not appear to have been under the Revised Statutes, for omitting to render an account or to file an inventory, but by the recital of the statute of 1837 (Ch. 460, §§ 29 to 32), to have been on the application of sureties. This case does not come within the statute of 1830, before cited, because the decrees therein specified are only those upon rendering an account, a final settlement, or for a debt, legacy, or distributive share. And although a substituted administrator may call his predecessor to account (2 R. S. 95, § 68), extended by statute of 1837 (Ch. 460, § 36), yet such accounting is expressly excepted from the cases in which a surrogate is required to decree payment and distribution of assets on hand (Id. § 71), and appears to be only a means of discovery of the disposition of the

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