Taylor v. Mygatt

Ellsworth, J.

This is an action against the surety of a probate bond, to recover the sum of $4.77 probate fees due to Frederick Chittenden, Esq., a former judge of probate of this district, and $312.23 due him in his individual capacity *190 for professional services rendered to John C. Smith as the administrator of his father, Perry Smith, Esq. The question is, is the surety on a bond given for the settlement of Mr. Smith’s estate liable for the debts created by the administrator, whether for probate fees or other services, in the business of settling .the estate. We think he is not.

In our view, the bond was not given for any such purpose, and can not be applied to cover any such duty. Such a course of procedure would not only introduce a novelty into practice, but would lead to great embarrassment and confusion in the regular administration of estates. Nor is there the least occasion for it, for the administrator or executor, like the assignee of an insolvent estate, is the person who, individually, transacts the business on his own credit. He employs agents, attorneys, and laborers, and becomes himself the original and only debtor for all services so procured, though in behalf of the estate. Indeed he could not make the estate a debtor to such creditors if he would, for he can make no new debt at all. He must employ such aid as he needs, according to his best judgment, and indemnify himself out of the estate when he makes his settlement with the judge of probate; and in this way these agents, laborers, and attorneys, will get their full pay from their debtor, the one who employed them, and the estate will then be regularly settled in due course, which will not be the case if the claim of the plaintiff is correct.

Suppose an administrator, in his administration account, is allowed for the charges and debts incurred by himself, in the employment of agents, laborers, or others, in taking care of the estate, and in collecting and preserving it for those who are entitled to it as creditors, heirs, or devisees, and yet should fail to pay these debts, can the estate be called on to pay a second time, in the hands of a subsequent administrator de bonis non? It certainly can if the estate is the debtor to these strangers, either jointly or severally with the administrator. The only course which can be taken, is for the administrator to make his proper charges and present them to the court. When they are allowed, he will retain to that *191 amount the funds of the estate, and thus the estate can be finally and completely settled, and the surety on the probate bond learn when his liability has terminated.

We make no distinction between the debt due to Mr. Chittenden for fees as a judge of probate, and that due him as an attorney or counselor. No credit was given to the estate in either case.

' But it is said that there has been a breach of the bond at all events, inasmuch as the administrator made and returned to the court no inventory of property, while it is admitted that the intestate left property which came to his knowledge, and has not settled his administration* account; and that therefore nominal damages must be allowed.

This would be so if the law remained as it was previous to the statute of 1848. By that statute, the person interested in the bond must appear on the record, and is made the real plaintiff in the case. He is liable for costs, and he must aver and prove how and to what extent he is interested, and how he is injured by the breach, and if he does not do this, there ought to be no recovery in the case. This is the construction which we give the statute, and we are the more willing to give it in order to avoid the recovery of a bill of costs, which has too often been secured when the plaintiff had only a technical cause of action, and none on the merits.

The other questions made on the trial we do not think it necessary to consider. We advise judgment for the defendant.

In this opinion the other judges concurred.

Judgment for defendant advised.