I think the judgment ought to be reversed. The condition of the bond is that the administrator will faithfully discharge the trust reposed in him as such, and obey the lawful decrees and orders of the Surrogate’s Court of the county of Lewis, touching the estate committed to him. The administrator made his petition for a final judicial settlement to the Surrogate’s Court, and a decree was made settling his accounts and directing distribution, but the citation was not served upon the sureties. Section 2728 of the Code of Civil Procedure provides that an executor or administrator may present his account and written petition praying that his account may be judicially settled, and that the sureties in bis official bond and other persons interested and named in said section may be cited to attend the settlement.
There was no provision for citing the sureties at tlm time the bond was executed. It does not seem to me that the failure of the administrator to serve the Citation upon the sureties prevents the plaintiff from recovering upon the bond. I think the decree was a lawful decree against the administrator, and that the proceeding in the Surrogate’s Court is in no proper sense a remedy upon the bond.
Judgment and order affirmed, with costs.