(dissenting):
T am not able to concur in the views of this case expressed by my brethren. In my opinion the judgment of the court below should be affirmed.
The defendants were mere sureties on the bond. For aught that *366appears (and it must therefore be assumed) they were entirely ignorant and innocent of the fraud of their principal, and as much so as the surrogate himself who issued the letters.
The argument that they must be held as participants in the fraud of their principal, because without the giving of the bond he could not have obtained the property would be equally as potent against the surrogate, for without his letters the fraud could not have been successful. It is, in my judgment, entitled to no weight whatever. As innocent parties they, the defendants, executed a bond, the office and purposes of which are clearly defined and declared by statute. Their obligations and liabilities are precisely the same as though the several provisions of the statute had been embodied in the bond. Their rights as sureties are strictissimi juris. They were bound, and only bound, to the performance by their principal of his duties and liabilities as administrator towards all persons and creditors interested in his administration of the plaintiff’s estate.
But that administration was arrested. The letters were vacated by the surrogate upon a ground which rendered void all the proceedings in his court, and subjected the administrator to his liabilities to the plaintiff as a personal wrong-doer who had obtained the plaintiff’s property by a criminal fraud. There never existed any liability whatever on the part of the wrong-doer to the plaintiff as his administrator. The plaintiff could not sue him in his representative capacity, but only for his individual fraud and wrong in obtaining possession of the plaintiff’s property. But the defendants by their bond became sureties only for the performance of the principal’s duties and liabilities as an administrator to the extent and in the mode pointed out by statute, and under which their undertaking as sureties was to be enforced only as prescribed by statute.
To change the undertaking of such sureties into a liability for the gross personal fraud of their principal, which he had accomplished through certain legal proceedings, in the course of which he had made use of a bond obtained in fraud also, of the sureties themselves, is something which I think neither equity nor law will permit.
What remedy the plaintiff might have against these defendants if he could show that they were co-conspirators and participators in the fraud is another question. The remedy would not, however, be upon the bond, but by a more efficient action for conspiracy and *367fraud. The only question here is whether the bond can be perverted from the purposes for which it was given, in such form as to make it the basis of a recovery for wrongs perpetrated by the principal in his individual, and altogether outside of his representative capacity. I think not.
Judgment reversed.