[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 3
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 4 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 7 In 1864 the will of Andrew Hood, deceased, was admitted to probate, and letters testamentary were issued to the plaintiff and the defendant Frederick Hood; and the latter being a non-resident of this state, gave bond in which the defendant Hayward and David Moffat joined as sureties. *Page 8 The executor Hood was afterwards charged with devastavit, and in 1883 his letters were revoked. On July 31, 1885, in a proceeding before the surrogate, instituted by petition of the plaintiff, a decree was made directing him to pay to her as such executrix the sum of $31,100. This action was afterwards brought upon such bond. And the objection is taken that it cannot be maintained, because no execution was issued upon such decree and returned wholly or partially unsatisfied. The disposition of this question is dependent upon the statute by which such remedy is regulated. (Code Civ. Pro. §§ 2607, 2608, 2609.) Those sections provide for three classes of actions upon the official bond of executors and administrators: 1. Where an execution issued upon a surrogate's decree against the property of an executor or administrator has been returned wholly or partly unsatisfied, an action to recover the sum uncollected may be maintained upon such bond by and in the name of the person in whose favor the decree was made. (§ 2607.) 2. Where letters have been revoked, the successor of the executor or administrator, whose letters are revoked, may maintain an action upon his predecessor's bond, in which he may recover any money or the value of any other property received by the principal and not duly administered by him, and to the full extent of any injury sustained by the estate of the decedent. And the money recovered is regarded as part of the estate in the hands of the plaintiff, and must be distributed or otherwise disposed of accordingly. (§ 2608.) 3. Where the letters are so revoked and no successor is appointed, any person aggrieved may, upon obtaining leave by order of the surrogate so to do, maintain an action on the bond in behalf of himself and all others interested. And the money so recovered must be paid into the Surrogate's Court for distribution. (§ 2609.)
These are distinct remedies, and each of them is independent of the others. They were designed to take the place of those given by prior statutes on the subject. Formerly the right to bring actions on such bonds was subject to the direction of the surrogate, or was dependent in the case provided *Page 9 for it, of an assignment by him of the bond to the person in whose favor a decree was made. When an executor or administrator refused or omitted to perform a decree made against him for rendering an account or upon final settlement, the surrogate might cause the bond to be prosecuted. (L. 1830, ch. 320, § 23; 2 R.S. [2d. ed.] 53, § 19.) The provisions of section 2607 are substituted for section 65, chapter 460, Laws of 1837, which provided that after the return of an execution unsatisfied, the person in whose favor the decree upon which it issued was made, might have a right of action upon assignment of the bond to him by the surrogate. The present statute dispenses with the formal act of assignment. And the provisions of sections 2608 and 2609 seem to be somewhat broader in their import than were those of the former statute which provided for the prosecution of the bond of an executor or administrator whose letters had been revoked. Then it was done by the direction of the surrogate. (2 R.S. 85, § 21.) The actions under such prior statutes other than that of 1837, were prosecuted in the name of the People. Those statutes are referred to in view of the proposition before asserted, that the present remedies are distinct and independent of each other as were those formerly existing. (People v. Guild, 4 Denio, 551.)
The support of an action under section 2607 is dependent upon the return of an execution unsatisfied. That is not requisite for the purpose of actions within the provisions of the two sections following it. This action does not come within section 2609. The question arises whether it is supported by the provisions of section 2608. And that is mainly dependent upon the fact whether the plaintiff is the successor of the one whose letters were revoked. When her associate was retired from it, the entire trust was deyolved upon her. She succeeded to and necessarily assumed all the powers and duties with which he had been vested and charged as an executor, and in that sense she was his successor. There is apparently no reason for denying to her that relation, for the purposes of the remedy in view, unless the statute requires a construction *Page 10 which defeats it. The purpose of the statute giving the right of action to the successor of an executor or administrator whose letters are revoked, is to indemnify the estate of the decedent against loss so far as the means afforded by the official bond of the defaulting representative and the remedy founded upon it will permit. It not only seems that the appointment, if authorized, of a successor to the one of two whose letters have been revoked, would be useless for the accomplishment of that purpose, but such supply of another in that manner in his place is not permitted, except when necessary to comply with the express provisions of a will. The statute contemplates that, except in such case the survivor will perform all the duties of the trust. (Code, § 2692.) And, with that exception, it is only when all the executors or administrators die or become incapacitated, or the letters of all of them are revoked that letters will be granted to one or more persons as their successors. (Id. § 2693.) It follows that unless the survivor may be treated as a successor within the meaning of the statute, the provisions of section 2608 cannot be made applicable to an action upon the bond of one of two or more executors or administrators whose letters have been revoked; and that the remedy upon his bond when there is a survivor, is dependent solely upon the provisions of section 2607. That section provides for an action by the person in whose favor is made a decree against an executor or administrator after the return of an execution unsatisfied. The decree in the present case was not against such an officer, but was made pursuant to the statute providing that, upon the petition of the successor, or of the remaining executor or administrator, the surrogate may compel the person whose letters have been revoked to account for or deliver over money or other property, and to settle his account. (Id. § 2605.) It has, however, been held in Sperb v.McCoun (110 N.Y. 605) that in such case an action may be maintained, under section 2607, when an execution has been issued on such decree and returned unsatisfied. It does not follow, from the determination of that case, that the present one cannot be supported. Nor does the view *Page 11 in that case necessarily preclude the application of the provisions of section 2608 to the cause of action alleged in this case, and to its determination by the trial court as represented by its findings of fact. For the purposes of an action upon the bond of an executor whose letters have been revoked, the issue of execution upon a decree and its return unsatisfied are not requisite to its maintenance. Nor does the application of the provisions of the statute in that respect seem by its terms or by reasonable implication to be confined to those cases where no survivor remains to proceed with the execution of the trust; and in that view, inasmuch as the statute imposes its performance wholly upon the latter, the remedy upon the official bond of him whose letters are revoked is entirely with such survivor. And to hold that the latter is not a successor within the meaning of the statute, is to deny any remedy under the provisions of the section last mentioned. No definition of the term "successor" is given in the statute. There is in other sections of it upon the subject under consideration some language used importing its application to a person who receives an appointment in place of one who has been retired from the position of trust. But it is not so restricted by anything in section 2608. And, although by a process of reasoning the application of some provisions of other sections may be so made as to give to the word successor such restricted meaning, that construction is not within the evident spirit and purpose of the statute. The view here taken is that when the plaintiff became the sole remaining executor, she, for all the purposes of the trust, was the successor of the one who had been removed, as she succeeded to all the powers before then vested in him in his relation to the estate of the decedent, as effectually as they could be taken by one appointed in his place, if such appointment were permitted and had been made. And this action was brought solely for the benefit of the estate, to bring to it a fund to reimburse it pro tanto for the loss it had suffered by the breach of trust of the principal in the bond while he was executor, and in violation of the order of the surrogate. Such money, when collected, is part of the estate and to be distributed *Page 12 and disposed of under the direction of the surrogate. That is the purpose of an action and recovery under section 2608. And these views lead to the conclusion that this action is within the provisions of that section.
In respect to the other questions, the conclusions of Judge POTTER are adopted to the effect that the release of Moffat did not discharge the defendant Hayward from his liability to the extent of a moiety of the obligation assumed by those persons upon the bond; and that the plaintiff was entitled to recover interest only from July 31, 1885.
The judgment should, therefore, be modified by deducting from the recovery interest upon $10,000 from December 7, 1883, to July 31, 1885, and as so modified affirmed.