Clarke v. State ex rel. Williams

Where joint administrators unite in the same testamentary bond, they are jointly and severally answerable, not only each for his own acts, but also each for the acts of the other. When they do not design to place themselves in that attitude, they should execute separate bonds. So where the plaintiff had obtained judgment against I-I, as the surviving administrator of U, and issued a ji fa., upon which the nulla bona was returned, and then sued the administrator of C, (who had been in his life-time joint administrator with H, upon the estate of U,upon the joint testamentary bond of H and C; it was held, that for this devastavit of H, the joint bond was answerable.

Appeal from St. Mary's county court. The suit was instituted on the 8th of February, 1831, by the appellee, against the appellant, as the administrators of Calistus Underwood, the co-administrator with one Robert Holton, of Jeremiah Underwood, deceased. The bond on which the action was brought is dated October 13th, 1821, and conditioned in tho common form for the faithful performance by Holton, and the appellant’s intestate, of their duty as administrators of the said Jeremiah Underwood. To the appellant’s plea of performance of the condition of the bond, the appellee replied, setting out a judgment recovered by her against Holton, the surviving administrator; the issuing of a fieri facias, and the return of nulla bona thereon. To this replication the defendants demurred specially. 1. That it appears by said replication, that no judgment was obtained against Jeremiah Underwood in his life-time, or against his administrators in the life-time of the said Calistus, who was one of them; but charges him with a devastavit committed by Holton, tbe surviving administrator. 2. That no breach is assigned as having been committed by the said Calistus, either separately, or jointly with said Holton. The plaintiff joined in the demurrer, and the judgment of the county court upon it being in her favor, the defendants appealed to this court.