Passing several objections of a technical character, raised by the respondent’s counsel to the right of recovery on the bond counted on in this case, to wit, that the bond was irregularly obtained and was prosecuted without authority or direction from the court, and that the docket of judgment, based on the surrogate’s decree and the issuing of execution thereon, were irregular and insufficient, we prefer to put our decision on the merits, as did the Special Term in directing judgment for the defendants; and we might, as we think, be well satisfied to rest our affirmance of the judgment on the opinion there delivered by the learned judge before whom the case was tried. But a few additional suggestions may not, perhaps, be out of place. Of course, we owe obedience to the decision of the Court of Appeals; but it will be seen, on looking into the opinion of that court, that the determination of the question now before us was expressly reserved, with a strong intimation, however, that the sureties on the bond should not be held liable under the circumstances of this case, because of Barr’s inability to meet and answer the requirements of the surrogate’s decree as to his own debt to the estate. It is there said that while Barr’s debt to the estate must, by the terms of the statute, “ be treated as money in his hands for the purposes of administration, it will not for all purposes stand on the same footing as if he had actually received so 'much money; ” and, further, that he could not be held *586in contempt or as an embezzler because of his inability to make payment of it pursuant to the decree of the surrogate. Now, it would seem to follow that if not to be held in default when charged with contempt for non-compliance with the surrogate’s order, he should not be held in such default as would be necessary to charge his sureties because of such non-compliance. And so the Court of Appeals have held, in effect, as we think; for if the decree of the surrogate be open to explanation to defeat a legal remedy which would follow from an observance of its exact letter in one case, and that because of the injustice it would produce, it must also be open in like manner to answer the ends of justice in another. As is well said by Mr. Justice LaNDON in his opinion, “the sureties did not covenant to augment the estate out of their own; ” and, it may be added, this was not within the purview of the undertaking.
It is said in the dissenting opinion in the Court of Appeals in the case cited : “ Clearly, the statute never could have intended to convert a worthless debt into a demand, the payment of which might be enforced by making sureties liable who never intended or expected to assume any such obligation, and who were not understood to assume it at the time they became sureties.” True, this is said in the dissenting opinion; but the prevailing opinion contains nothing in hostility to this view. Indeed, it is in entire consonance with this remark. The injustice of holding the sureties liable in this case is obvious and serious, and it should not be permitted save under the pressure of absolute necessity. The defendants’ trouble here grows out of the express provision of the bond holding the sureties liable to absolute obedience by the executor to the order of the surrogate. (Schofield v. Churchill, 72 N. Y., 565; Thomson v. MacGregor, 81 N. Y., 592, on page 598.) Were the sureties here bound simply to fidelity on the part of the executor, the case would be widely different and without its present difficulty. Still we are inclined to the opinion that liability by the executor in this case for his own debt to the estate, as for money in hand, was not within the purview of the bond ; that such liability was not contemplated by those executing it, or, indeed, by the law pursuant to which it was required and given. Of course, we can but feel the force of the argument of the learned counsel for the appellant, fortified as it is by the numerous decisions cited *587by him. But, as we think, holding in mind the peculiar facts here certified to us, they are not directly in point, hence not conclusive of the question presented, and especially must we so conclude wheu we consider the strong intimation of the Court of Appeals, that the defendants might be entitled to their defense here interposed. We are of the opinion that the provision of the statute declaring that a debt due from an executor to the estate shall be treated, in the rendering of his account, as money in hand, must be construed with reference to the ordinary obligation, which imposed on him only diligent, faithful, honest action touching the administration of the estate committed to his charge. The Court of Appeals so held in effect by declaring that disobedience to the surrogate’s decree to the extent of his (Barr’s) own debt, would not here put him in contempt, or create against him a case of embezzlement. His sureties did not, by their bond, guaranty the payment of his debt-to the estate, but only guaranteed obedience by the executors to all orders of the surrogate “ touching the administration of the estate committed to them.” Has not Barr answered this obligation fully on his part ? What was the estate committed to his charge as executor? Was it not whatsoever of money or property which, with due diligence and entire honesty, could be made available by him for the payment of debts and for distribution ? The debt of Barr was of no value. It did not go to enhance the estate in fact; really and in fact it contributed no valuable or available part of the “ estate committed to ” the executors. But the orders, observance of which by the executors were guaranteed by the defendant’s bond, were those made by the surrogate.“touching the administration” of such estate. In this view of the case a breach of the bond in suit was not established.
The judgment should be affirmed, with costs.
Learned, P. J., and Peckham, J., concurred.Judgment affirmed with costs.