In Banc. This is an action at law to recover judgment against A.J. Johnson, and the sureties on his bonds, as administrator of the estate of Darrel D. Johnson, deceased, for the conversion of the assets coming into his possession as such administrator.
Darrel D. Johnson died intestate March 1, 1927, leaving an estate consisting of certain personal property and a one-half interest in the Johnson Motor Sales Company, a copartnership, consisting of Darrel D. Johnson and O.O. Johnson. On March 7, 1927, A.J. Johnson was appointed by the county court of Benton county, Oregon, as administrator of the individual estate of Darrel D. Johnson, deceased. He qualified as such, and filed a bond in the sum of $12,000, with H.E. Walter and C.E. McCready as sureties, conditioned for the faithful performance of his trust. The surviving partner, O.O. Johnson, waived appointment as administrator of the partnership estate and consented in writing to the administration thereof by the administrator of the individual estate. A.J. Johnson, upon qualifying, took possession of the partnership property and proceeded with the administration thereof under his appointment as administrator of the individual estate, took an inventory thereof, had the property *Page 388 appraised, and filed the inventory and appraisement with the probate court. On September 13, 1927, A.J. Johnson filed in the probate court an additional bond in the sum of $8,000, conditioned for the faithful performance of his trust, with the Fidelity Casualty Company of New York as surety; on November 14, 1927, he filed another bond in the sum of $5,500, conditioned in like manner, with the Fidelity Casualty Company of New York as surety.
A.J. Johnson continued to act as administrator of the individual estate of Darrel D. Johnson, deceased, including the partnership estate and the property and assets thereof from his appointment March 7, 1927, until March 31, 1934, when he was removed by order of the county court for cause, and his letters of administration revoked. He filed a final report and account of his administration of the individual estate and of the partnership estate, to which objections were filed and a hearing thereon was had in the county court on November 23, 1933. Thereafter, April 10, 1934, the court rendered a judgment wherein it found and decreed that A.J. Johnson, as administrator, had in his possession the sum of $851 belonging to the personal estate of Darrel D. Johnson, deceased, and the sum of $6,380.77 belonging to the partnership estate, which sums the court commanded the said A.J. Johnson to deliver upon demand to his successor in office. On April 17, 1934, C.O. Anderson, the plaintiff and appellant herein, was appointed administrator de bonis non of the estate of Darrel D. Johnson, deceased, duly qualified for the trust and made due demand upon A.J. Johnson for the estate funds found to be due from him by the decree of the probate court. Upon Johnson's refusal to respond to the demand, this action was instituted. *Page 389
At the trial the plaintiff submitted in evidence the written waiver of O.O. Johnson, of which the following is a copy:
"I, O.O. Johnson, as partner in the partnership being operated and conducted under the firm name and style of the Johnson Motor Sales Company, which partnership consisted of the late Darrel D. Johnson, deceased, and myself, do hereby expressly waive my right to be appointed administrator of the partnership estate and request the appointment of A.J. Johnson as administrator of said estate."
Plaintiff also submitted in evidence at the trial a certified copy of the inventory filed in the probate proceedings July 21, 1927, by A.J. Johnson, containing a schedule of the whole of the property of the partnership estate; the affidavit of A.J. Johnson, annexed to the inventory, showing "that the annexed inventory contains a true statement of all the real and personal partnership estate of Johnson Motor Sales Company, property of the said deceased which has come to my knowledge and possession"; the certification of the appraisers to the instrument to the effect that they had appraised the same, amounting in all to the sum of $27,800.28, and that the estate of Darrel D. Johnson had an undivided one-half interest therein; proof of the removal of A.J. Johnson as administrator; decree of final settlement and the demand of the administrator de bonis non and the fact that payment had not been received.
When plaintiff rested his case the defendant sureties moved for a nonsuit in respect to so much of the complaint as relates to the partnership, upon the ground that none of the bonds sued on purport to have been given for the faithful administration of the partnership property. This motion was sustained by the *Page 390 court and an exception allowed. No evidence was offered by defendants. The court found and adjudged that the plaintiff recover of and from defendants A.J. Johnson, H.E. Walter, C.E. McCready, and Fidelity Casualty Company of New York, and each of them, judgment for the sum of $851, with interest thereon from April 10, 1934, and for costs and disbursements; it was further adjudged that plaintiff recover of and from defendant A.J. Johnson further judgment for the sum of $5,860.77, with interest thereon from April 10, 1934, and costs and disbursements. Plaintiff appealed. Plaintiff assigns that the court erred in not finding that the administrator's bonds alleged in the complaint were given for a faithful administration of all the property and assets coming into his hands by virtue of his appointment as general administrator, including the property and assets of the partnership; in sustaining the motion of defendants Fidelity Casualty Company, H.E. Walter and C.E. McCready, to dismiss the allegations of the complaint as to said defendants, in so far as certain allegations relate to the property or assets of the Johnson Motor Sales Company; in not finding the allegations of the complaint true as to all defendants, except a credit thereon of $520 commission to A.J. Johnson as administrator of the partnership estate of the Johnson Motor Sales Company; in not finding that plaintiff was entitled to recover from defendants A.J. Johnson, H.E. Walter, C.E. McCready, and Fidelity Casualty Company of New York, and each of them, the further sum of $5,860.77, making a judgment of $851, belonging to the personal estate of Darrel D. Johnson, deceased, which, with the property and assets of the partnership estate, *Page 391 totaled $6,711.77, with interest thereon from April 10, 1934, together with costs and disbursements.
Plaintiff contends that since the surviving partner, O.O. Johnson, waived his right to be appointed administrator of the partnership estate of the Johnson Motor Sales Company and failed to apply for the administration thereof and qualify therefor, the administration of the partnership estate devolved upon A.J. Johnson by virtue of his appointment as administrator of the individual estate of Darrell D. Johnson, deceased.
Section 11-224, Oregon Code 1930, provides as follows:
"The executor or administrator of a deceased person, who was a member of a copartnership, shall include in the inventory of such person's estate, in a separate schedule, the whole of the property of such partnership; and the appraisers shall estimate the value thereof, and also the value of such person's individual interest in the partnership property, after the payment or satisfaction of all the debts and liabilities of the partnership."
Section 11-225 reads as follows:
"After the inventory is taken, the partnership property shall be in the custody and control of the executor or administrator for the purposes of administration, unless the surviving partner shall, within five days from the filing of the inventory, or such further time as the court or judge may allow, apply for the administration thereof, and give the undertaking therefor hereinafter prescribed."
Section 11-228 reads thus:
"In case the surviving partner is not appointed administrator of the partnership, the administration thereof devolves up [upon] the executor or general administrator; but before entering upon the duties of such administration he shall give an additional undertaking in double the value of the partnership property." *Page 392
Successive or additional bonds given by an administrator for the faithful performance of his trust are cumulative security and the liability of the sureties thereon are as if all had signed the same bond. By furnishing the bonds alleged in the complaint, A.J. Johnson was duly qualified to administer the assets of the partnership property: Bellinger v. Thompson,26 Or. 320, 346 (37 P. 714, 40 P. 229); Thompson v. Dekum, 32 Or. 506,513 (52 P. 517, 755); Central Banking Security Co. v.U.S.F. G. Co., 73 W. Va. 197 (80 S.E. 121, 51 L.R.A. (N.S.) 797, 803); 24 C.J. 1060, § 2539; 2 Brandt on Suretyship Guaranty (3d Ed.), § 713.
When O.O. Johnson, the surviving partner of the firm of Johnson Motor Sales Company, waived his right to be appointed as administrator of the estate of said partnership, and failed to apply for the administration thereof, the administration of the assets and property of said partnership devolved upon the general administrator, A.J. Johnson, as surely as any of the property of the personal estate of Darrel D. Johnson, deceased. A.J. Johnson received such property as the general administrator of the individual estate. The decree of the county court finding that A.J. Johnson, as administrator, was in possession of the assets belonging to the estate of Darrel D. Johnson, deceased, and to the partnership estate, aggregating the sum of $7,231.77, is binding and conclusive upon all the defendants, in the absence of fraud or collusion upon the sureties, for the reason that by their contract they have made themselves privy to the proceedings against the principal. When the principal is concluded the surety is concluded also. The liability of the surety on the administrator's bond is coextensive with that of the principal:Bellinger v. Thompson, supra; Rutenic *Page 393 v. Hamakar, 40 Or. 444, 456 (67 P. 196); United Brethren v.Akin, 45 Or. 247, 250 (77 P. 748, 66 L.R.A. 654, 2 Ann. Cas. 353); Exendine v. Iron, 153 Okla. 177 (4 P.2d 1035, 1037).
The bonds, upon which the Fidelity Casualty Company of New York was surety, condition that A.J. Johnson shall faithfully perform his trust as administrator according to law, were required and given on account of the partnership assets and property, the administration of which devolved upon A.J. Johnson, as general administrator of the estate of Darrel D. Johnson, deceased.
It is contended by the defendant sureties that the bond given by the surety, conditioned on the performance of the duties of the principal in said office, does not cover defaults of that principal in the performance of a duty not included in that office, citing Columbia County v. Massie, 31 Or. 292 (48 P. 694); Wheeler County v. Keeton, 52 Or. 16 (95 P. 819); Annotation 43 L.R.A. (N.S.) 308. With this proposition we are fully in accord, but, as we have already suggested, the administration of the partnership estate mentioned pertained to the duties of, and was included in, the administration of the estate of Darrel D. Johnson, deceased. The facts and law of this case are not like those referred to by the learned counsel for defendant sureties as analogous cases, where a sheriff of a county gives a separate bond as tax collector, under section 69-703, Oregon Code 1930, as shown by the cases of WheelerCounty v. Keeton, supra, and Columbia County v. Massie, supra.
Counsel for the defendant sureties candidly submit that the bonds filed by the administrator of the general or individual estate do not cover defaults in the performance of duties as administrator of the partnership *Page 394 by the express provisions of our statute above quoted "unless the duties of administering the partnership are included within the duties of the general administrator". We hold that the duties of administering the partnership estate of the Johnson Motor Sales Company in the present case were included within the duties of the general administrator.
Counsel for defendants Walter and McCready cite Orrick v.Vahey, 49 Mo. 428. In that state the provisions of the statute are different from those in Oregon, as shown by the following quotation therefrom:
"In all instances the surviving partner has the choice to administer on the partnership effects if he sees proper to do so; but if he neglects, then the individual administrator may take out letters of administration on the partnership estate. But he is required to give a new bond, and he acts in a new, separate and distinct capacity."
It is stated that there is a conflict of authorities upon similar questions, but we do not believe there is any conflict of authorities where the statute of the state is as plain as ours. The apparent conflict in such cases is well explained in the notes in 43 L.R.A. (N.S.) 308. The case of Palicio v. Bigne,15 Or. 142 (13 P. 765), is not a guide in the present case because the facts are variant from those in the present case.
The liability of the sureties is coextensive with that of their principal and the plaintiff is entitled to judgment against the sureties equal to that against A.J. Johnson. It is so nominated in each of the bonds mentioned.
The judgment of the circuit court will be reversed as to the sureties and the cause remanded for such further proceedings as may be deemed proper, in accordance with this opinion.
CAMPBELL, C.J., not sitting. *Page 395