Haskell & Co. v. Farrar

Wagner, Judge,

delivered the opinion of the court.

From the record it appears that Thos. J. Daily was appointed. administrator of the estate of James Roddy, deceased, by the Probate Court of St. Louis County, and on the 24th day of December, 1866, he executed his bond in the sum of $100,000, with the defendant, Farrar, as one of his sureties.

At a subsequent term of the Probate Court, the administrator, Daily, was required to give an additional bond in the sum of $50,000, which order he complied with on the 11th day of January, 1867, and the new additional bond was made with other sureties. Both bonds were approved. After-wards, in due course of administration, the .Probate Court made an order for the payment of ninety per cent, of the demands allowed to the creditors, The administrator failed to comply with this order. The plaintiff, whose demand had been allowed, then instituted this proceeding by motion, to obtain judgment against the .administrator and his sureties on the original bond, and judgment was rendered against them, upon which an execution was awarded. An appeal was taken to the Circuit Court, where the judgment of the Probate court was affirmed, and the defendant has now brought the case here.

The only question in the case is, whether the taking of the additional bond had the effect of releasing the sureties on the original bond. The statute in regard to executors and administrators, (Wagn. Stat., p. 75, 76) makes different pro *498 visions in regard to requiring new bonds to be given, and they are dissimilar in their effect and operation. By the 36th section, any heir, legatee, creditor or other person interested in any estate, may file an affidavit, stating that he has reason to believe that the surety in the bond is insolvent, or that the principal is insolvent or is wasting the estate, and it is then made the duty of the court, on notice given, to examine the complaint. The 37th section provides that the same proceedings may be had on behalf of a surety in the bond, upon showing that his co-sufety has or is likely to become insolvent, or that the principal has or is likely to become insolvent, or is wasting the estate. Section 38 declares, that if the court shall find the complaint mentioned in either of the preceding sections, to be just, it shall order another bond and sufficient security to be given. The 39 th section then declares the effect of such additional bond, and says, that when it is given and approved, it shall discharge the former sureties from any liability arising from any misconduct of the principal, after filing the same, and such former sureties shall only be liable for such misconduct as happened prior to the giving of such new-bond. If the new bond is not given within ten days after the making of the order for that purpose, then by section 40.. the letters of administration from thenceforth shall be deemed revoked. But by the 41st section, it is provided that it shall be the duty of the court, whenever it shall appear necessary and proper, to order an executor or administrator to give other and further security, first giving such executor or administrator at least five days’ notice of such intended order.

It will be observed that all the sections preceding section 40, apply to cases where either the co-surety- or some person interested in the estate, institutes a proceeding on the ground that the sureties or the principal have, or are likely to, become insolvent, or that the assets of the estate are being wasted or mismanaged. The 41st section, however, proceeds upon an entirely different reason. There it is left to the discretion of the court, upon its own motion, to order an executor or administrator to give other and further security, when it *499 shall appear necessary and proper. The provision of section 39, by which the former sureties are released after the bond is filed, has no application. When the court acts of its own motion, it is not because the estate is being wasted, or any of the former bondsmen are insolvent, but it is because the bond is deemed to be an inadequate security, and therefore, other and further security becomes necessary. The last bond does not supersede the former, but is cumulative and additional to it; This question was carefully examined in the case of State, ex rel., Glenn vs. Wright’s Adm’r, et al., ( 53 Mo., 474 ) and the above conclusion arrived at. It must now be considered settled, and no longer open to discussion. (See also, State to use, etc. vs. Drury, 36 Mo., 281 .) As the. court, in this case, acted upon its own motion, the sureties in both bonds are liable for the default of the administrator. Whatever their respective rights may be, as regards contribution between themselves, is a matter not necessary to be now considered.

The judgment should be affirmed;

the other judges concur.