Kaminer v. Hope

1. It not appearing that the question presented by this appeal was ever brought to the attention of the Circuit Court, the well settled rule forbids its consideration by this court; but, under the circumstances of this case, the rule was relaxed and the point adjudieated.'*' ■2. A decree against an administrator of an administrator at the suit of an administratrix pendente lite of the first intestate for an accounting, is sufficient to sustain an action against the sureties on such defendant’s administration bond. 3. While the authority and power of an administrator pendente lite is much more limited in its nature than that of a general administrator, yet he may bring actions to recover debts due his intestate’s estate. Cases reviewed.

Before Cothran, J., Lexington, September, 1881. The case is fully stated in the Circuit decree, which was as follows: This cause came on for trial before the court and a jury, at the fall term, 1881, of the court of Lexington county. By agreement of parties, the question as to the amount of the penalty of the bond signed by defendant’s intestate, John C. Hope, as surety of Lévi Gunter, the administrator of Martin T. Leaphart, was alone submitted to the jury, upon which they were required to find a special verdict, all other questions being reserved for the judgment of the court. The jury having found that the penalty of the administration bond signed by defendant’s intestate was $20,000, it devolved upon me to ascertain and fix the liability of the defendant’s intestate as the surety of Levi Gunter. The facts of the case, in so far as they are necessary for the proper understanding of this question, are as follows: Simon A. Leaphart, late of the county of Lexington, departed this life intestate some time during the year 1853, leaving as his only heir-at-law his widow, Mary Leaphart, and an only child, Polly Leaphart. Shortly thereafter his brother, Martin T. Leaphart, administered upon his estate, and reduced the same into his possession, reporting, on January 1st, 1854, a balance in hand of $4,894.50. On April 24th, 1855, Mary Leaphart and Polly filed their bill in the Court of Equity for said county, against said Martin T. Leaphart, as administrator of Simon, praying an account of the estate of his intestate. The rights of the said Mary and Polly to claim, as heirs of Simon, were contested upon the ground of the illegality of the marriage of Mary with Simon, and the consequent illegitimacy of Polly. Martin T. Leaphart died in the month of May, 1860, never having accounted; and thereafter Levi Gunter administered upon his estate, giving bond to the ordinary of Lexington county for the faithful discharge of his duty, with John C. Hope, defendant’s intestate, as surety on said bond. Prior to his death, to wit, on April 9th, 1860, Martin made a deed of assignment to Gunter for the payment of his debts, under which Gunter sold the property of the said Martin, amounting to $15,164.57, out of which he paid Martin’s debts, as directed in the assignment. Martin died before the sale. Gunter administered upon his estate, and sold the balance of his personal estate for about $150, and in his account with the ordinary, as administrator, in January, 1861, showed a balance in hand of $11,125. On March 28th, following, the said complainants filed their bill of revivor against Levi Gunter, as administrator of Martin T., with whom were joined, as defendants, George J. Leaphart, James E. Drafts and Sarah, his wife — the other heirs-at-law and next of kin of the said Martin T. By the several answers to this bill of revivor, like issues as to the legality of the marriage of Mary with Simon and the legitimacy of Polly, were raised, which had to be settled before an accounting could be had. These questions being decided favorably to the complainants, (Leaphart v. Leaphart, 1 S. C. 199,) the other issues, both of law and fact, were, on January 5th, 1871, referred to Francis W. Fielding, Esq., who, on March 1st, 1871, reported in favor of the plaintiff Mary the sum of $4,047.68, and in favor of the plaintiff Polly the sum of $8,095.37, against the said Levi Gunter, being the amount due the estate of Simon by Gunter’s intestate, Martin T., and in favor of the plaintiff Polly the further sum of $2,048.60, as one of the distributees of the said Martin T. This report having been confirmed by the court, judgment was thereupon, on October 30th, 1873, entered up in favor of' said complainants against the said Levi Gunter, and his entire-estate advertised and sold by the sheriff of Lexington county. After applying the proceeds of such sale to the satisfaction of' the judgment, there remained still due and unpaid by the said. Levi Gunter the sum of $15,490.48. Mary Leaphart died: intestate some time during the year 1872, and thereafter, to wit,, on September 2d, 1872, Thomas L. Kaminer, one of the plaintiffs herein, administered upon her estate. Upon the judgment of the court thus rendered against the-said Levi Gunter, this action was instituted against the said John C. Hope (who was then living), one of the sureties upon Gunter’s administration bond, for the balance due on said judgment. The cause was brought to a trial before the Honorable-Thompson H. Cooke, one of the judges of this court, and a jury, at Lexington, in July, 1876, and upon a full submission of the-cause to the jury the following verdict was rendered: “We find that the penalty of the bond executed by Levi Gunter, as administrator of Martin T. Leaphart, with John C. Hope,' the defendant herein, as surety, was for the sum of $20,000. We find that the amount now due by Levi Gunter, as administrator of Martin T. Leaphart, to the plaintiff by reason of his devastavit of the estate of said Martin T. Leaphart, and for which John C. Hope is liable in this action, is the sum of $15,498.48, with interest thereon from October 5th, 1874.” A motion was thereupon made for a new trial, which having been refused, an appeal was prosecuted to the Supreme Court, the order of the Circuit Court reversed and a new trial granted. Hammer v. Hope, 9 S. G. 253. This cause is now to be considered in the light of that judgment ; and it having been therein held “ that the plaintiff could not recover in this action the amount due the estate of Simon A. Leaphart by the late Martin T. Leaphart, as administrator, in the absence of an administrator de bonis non of Simon’s estate,” the pleadings were amended by adding William J. Assman, who had been in the meantime appointed administrator de bonis non of Simon A. Leaphart, as one of the plaintiffs. John C. Hope having also in the meantime died, the pleadings were further amended by adding as a party defendant, James C. Hope, as the administrator of John C. Hope. As thus amended, the cause is again presented for trial. The plaintiffs claim that the defendant’s intestate is liable for the full amount of the judgment rendered against his principal, Levi Gunter, by the Court of Equity. The defendant sets up three defenses: First. He denies the execution of the bond set forth in the complaint. Second. He denies the liability of his intestate upon the administration bond for a devastavit committed by Martin of the estate of Simon, and avers that the sureties upon the administration bond of Martin are alone answerable for such devastavit. Third. He denies that the sum of $4,047.68 and $8,095.37 were found to be due respectively in favor of Mary Leaphart and Polly Leaphart against the said Levi Gunter as administrator of Martin T. Leaphart, and chargeable upon the administration bond of Levi Gunter as a devastavit of the estate of the said Martin T. Jjeaphart. The first defense has been settled by the verdict of the jury in favor of the plaintiffs. The remaining defenses involve the-questions reserved for the court, which I shall now proceed to consider: It is urged by the defendants that as to the devastavit of Martin T. Leaphart, these plaintiffs should proceed against the sureties upon his official bond. True, they may elect so to do; but why, when it appears that he (Martin) left an estate ample for the payment of debts, which passed into the hands of his administrator, Gunter ? The demands of these plaintiffs against Gunter is for the payment of a debt due by Martin to the estate of his intestate, Simon. I say a debt due the estate of Simon upon the death of Martin — for any sum which he was in arrears to Simon’s estate was a debt due by the former to the latter. Davis v. Wright, 2 Hill 567; Gill v. Douglass, 2 Bail. 387. Gunter admits assets, but in the proceedings before the Court of Equity fails to account for them. I am, therefore, unable to see upon what principle his surety can avoid responding to his default, according to the condition of his bond. The liability of the surety is to make good the injury which may be sustained in consequence of the misconduct of the principal. Ordinary v. Shelton, 3 MgG. 417 • Davis v. Wright, 2 Hill 567; Wiley v. Johnsey, 6 Rich. 358; Ordinary v. Mortimer, 4 Rich. 275. These authorities furnish an ample exposition of both the responsibility and the liability of the surety. Martin having converted the entire estate of Simon, the only right which remained to the administrator de bonis non was to demand of the personal representative of Martin an account, and ask judgment for such balance as may be ascertained to be due by the latter to the estate of his intestate. Villard v. Robert, 1 Strobh. Eg. 402. Such accounting being had and balance ascertained against the administrator, it is the well recognized practice for the administrator de bonis non, upon the decree of the ordinary or Court of Equity, to sue the administrator of the former administrator upon his bond in an action at law, and, when necessary, to join in the action the sureties upon his bond. Governed by the rule laid down in Ordinary v. Carlisle, 1 McM. 100, the defendant’s intestate can be discharged only by showing that his principal, Levi Gunter, received no assets which were liable for the payment of the devastavit committed of the estate of Simon A. Leaphart, or by otherwise pointing out in what particular it would be improper to charge him in this action with the entire amount of the judgment against Gunter in the former suit. Kaminer v. Hope, 9 8. C. 257. This he has not done, though full opportunity was allowed. This, in fact, he could not do, since it appears from the returns of Gunter before the ordinary in January, 1861, that there remained in his hands, after the payment of all other debts of Martin T. Leaphart, an amount largely in excess of that due the estate of the said Simon A. This Gunter should have applied in payment of the claim of Martin’s intestate, or, pending the litigation, he should have paid the fund into court or otherwise invoked the aid of the court, and sought the appointment of some one to whom he would be authorized to pay the same. He, however, saw fit to join in the controversy raised by the ■Leaphart family, who were all in antagonism to plaintiffs, and to assume the risk, pending the litigation, of holding and controlling the fund. That it has been lost is the result of his own voluntary act, and the obligation to secure parties in interest against just such risk the sureties assumed by the very condition of his bond. But suppose, as is urged by the defendant, that the plaintiffs be required in the first instance to proceed against the sureties ■of Martin. Would they not, having been required to 'respond to Martin’s default, have the right to proceed against Martin’s •estate, in the hands of Gunter, his administrator, and to hold him and his sureties for the default of Martin by them paid V This being true, why insist upon such diversity of action ? The sureties of Martin would be subrogated to any right of the creditor of Martin whose claim they had been required to pay. Hampton v. Levy-, 1 McCord Ch. 116; Lowndes v. Chisolm, 2 Ld. 455 ; Perldns v. Kershaw, 1 Hill Ch. 344 ■ Rhame v. Lewis, 13 Rich. Eq. 330, 332. It is further urged by the defendant that he can, under no circumstances, be held for a greater sum than that found by the referee in favor of the plaintiff Polly, against Levi Gunter, as administratrix of Martin T.; and he denies that the sums of $4,047.68 and $8,095.37 were found to be due respectively in favor of Mary Leaphart and Polly Leaphart against the said Levi Gunter, as administrator of Martin T. Leaphart, and •chargeable upon the administration bond of the said Levi Gunter as a devastavit of the estate of said Martin T. This defense is bottomed upon the judgment of the referee, which is as follows: “ I therefore find for the plaintiff Mary, the sum of $4,047.68, and for the plaintiff Polly, the sum of $8,095.37, against the defendant, Levi Gunter, on account of the ■estate of Simon A. Leaphart; and for the plaintiff Polly, the ;sum of $2,048.60, against the defendant, Levi Gunter, as administrator of the estate of Martin T. Leaphart.” The argument of the defendant is that in respect to these two amounts the judgment is against Gunter personally — not against him as administrator of Martin, and, therefore, his surety cannot be held liable. It must be observed that the manner in which the referee has stated the account was a necessary consequence of the separate interests of the plaintiffs, Mary and Polly, and should not be ■construed as indicating a liability of Gunter in different capacities. The bill was wide in its scope, seeking in the outset an account alone of the estate of Simon A. in the hands of Martin T., his administrator. Upon the death of Martin T., pending the suit, the bill had to be revived against Gunter, his administrator, and thenceforward involving the additional interest of Polly as one of the distributees of Martin. The referee adopted a convenient and proper mode of expressing the separate interest of each of the plaintiffs; but I cannot see that it operates to charge Gunter in any other capacity than as administrator of Martin. The proceeding throughout, so far as it operated against him, was in his representative capacity, and a judgment could only be rendered against him as such, except, however, that as for any devastavit adjudged against him satisfaction may be ordered out of his individual estate. The amounts adjudged, as appears by the referee’s report, in favor of Mary and Polly, respectively, were due by Martin to the estate of Simon, his intestate, and assets sufficient for the payment of same having come into the hands of Gunter, he and his sureties are liable therefor. But, further, in support of the view I feel constrained to take of the defenses now under consideration, I regard the judgment of the Supreme Court heretofore rendered in this case (9 8. C. 253) conclusive of the proposition. The defenses herein set up-were all before the court in .the former trial and before the Supreme Court upon the appeal. After deciding that the refusal on the part of the Circuit judge to charge upon certain propositions of law as requested by the defendant was sufficient ground for a new trial, Kershaw, acting Associate Justice, speaking for the court, says: “ Other questions are made by the appeal which it will be proper to settle in order that the new trial may be conducted in the light of a decision of the points of law involved.” ' The very questions now under discussion were then considered, and in holding that the judgment against Gunter could only be prima facie evidence against his surety, the court say: “ The appellant has, therefore, a right to look into the decree and point out in what particulars it would be improper to charge him in this action with the entire amount of judgment against Gunter in the former suit. Of that amount the sum of $12,143.05 was-for a liability of Gunter to the estate of Simon A. Leaphart. This arose from the sale and conversion of assets of the estate of Simon, which were in the hands of Martin as administrator, and by him assigned to Gunter, together with the bulk of his-own estate, upon a trust to pay certain debts of the assignor from the proceeds. The decree against Gunter was for the residue of the fund left after performing the trust. This residuum, it is here claimed, was an asset in the hands of Gunter, as administrator of Martin, to be accounted for by him in that capacity. He himself so treated it in his accounts. The plaintiffs, also, .have so treated the funds, and thereby ratified, so far as they are concerned, the conversion by Martin of Simon’s assets. The fund derived from such conversion is, therefore, for the purposes of this decision, to be treated as vested in Martin’s estate and to be .accounted for by his administrator.” To whom., then, assuming this view of the argument as most favorable to the plaintiffs, is he, Gunter, to account for the fund ? Evidently to the creditors of his intestate in the first instance, and afterwards to his distributees. Of the amount decreed against Gunter, $12,143.05 was due the estate of Simon A. Leap-hart, for devastavit of Martin as administrator. Can this fund be recovered of the defendant in this case by the distributees of Simon A. Leaphart without an administration of the estate of Simon ? Simply stated, the question is whether distributees can sue for and recover debts due their intestate’s estate. Put in this form the affirmative would hardly be contended for. “ It follows that the plaintiffs cannot recover in this action the amount due the estate of Simon A. Leaphart by the late Martin T. Leap-hart, as administrator, in the absence of an administrator de bonis non of Simon’s estate.” 9 S. C. 257, 259. Undoubtedly this amount was regarded by the court as a debt due by Martin to the estate of his intestate, for which Gunter, his administrator, was liable to account to the proper representative of Simon’s estate. This party is now properly before the court, in the person of William J. Assman, as administrator de bonis non of Simon A. Leaphart, and I fail to see in the several grounds urged by the defendant anything to relieve his intestate from the liability of his principal. The defendant further sets up the plea of “plene administravit prceter,” and files with his answer certified copies of the inventory and appraisement, and also of his return before the Probate Court for the year ending December 31st, 1880, by which it appears that the defendant possessed assets of his intestate to' be administered, amounting only to the sum of $961.06. No effort was made on the part of the plaintiffs to impeach these returns, nor to charge the defendant with more. This admission must, therefore, be taken as true, and the defendant can only be chargeable with the amount thus admitted, unless other assets of the intestate shall hereafter come into his hands to be administered as suggested in his answer. There is no conflict between the plaintiffs in respect to their respective interest in the amounts sued for; but, in view of the judgment of the Supreme Court, I deem it proper to settle by the judgment now to be delivered these respective claims for the protection of the administrator de bonis non. In the course of the argument, the defendant, while urging the proposition that he could not be held liable for the amounts adjudged by the referee against Gunter on account of Simon’s estate, contended that the amounts heretofore collected from Gunter should be credited wholly upon the recovery in behalf of Polly, as one of the distributees of Martin. In the view I have taken of the liability of the defendant’s intestate as the surety of Gunter, it is a matter of no consequence to him in what manner this application is made; and while to the plaintiffs it is also a matter of minor importance, I adopt the ratable application of such collections as the most proper. It is therefore adjudged that the plaintiff William J. Assman, as administrator de bonis non of Simon A. Leaphart, recover against the defendant, as administrator of John C. Hope, deceased, the sum of $13,277.56, with interest from October 5th, 1874; and the plaintiff Polly Leaphart recover against the said defendant, as administrator as aforesaid, the sum of $2,212.92, with interest from October 5th, 1874; said debts, interests and costs to be levied of the goods and chattels Avhich were of the said John C. Hope at the time of his death, in the hands of the said James C. Hope as administrator as aforesaid to be administered, and which may hereafter come into the hands of the said administrator to be administered, and of the lands, tenements and hereditaments which were of the said John C. Hope at the time of his death. From this decree the defendant appealed upon the following exceptions: ' / 1. Because it is respectfully submitted that the learned judge in his able opinion erred in the said judgment in this: That he has entirely overlooked the important point, earnestly pressed upon the court, that by the proceedings in equity (to which John C. Hope wras not a party) referred to Francis W. Fielding as referee, and introduced as evidence in this case to show the amount of the liability of Levi Gunter as principal, and thereby to fix the liability of John C. Hope as surety, it appeared that the accounting was had at the suit of the administratrix pendente lite of Simon A. Leaphart, and not at the suit of an administrator de bonis non. 2. Because, this being true, until there was an accounting by the principal at the suit of an administrator de bonis non, there was no breach of the condition of the administration bond legally ascertained, and no verdict could be legally rendered and no judgment could be legally predicated on such verdict'. 3. Because, this being a correct conclusion of law, the Circuit judge erred in ordering judgment in any amount whatever, under any finding as to the penalty of the bond, before the breach of the condition had been legally ascertained in the suit against the principal, and, a fortiori, in a suit against the surety. cited 1 Strobh. Eq. 402, 414; 2 Bail. 373, 387; 1 Rich. Eq. 123; Riee 350; 16 N C 432.