dissenting :
I can not concur with the majority of the court in the decision of this case. In my judgment, under the provisions of our statutes the sureties on the bond of Frick, as administrator of-the estate, are liable for the amount of money which he received as administrator, and which has never been accounted for. Of the money which the administrator received belonging to the estate, he died with $5797.14 in his hands, no part of which has been paid over to the person entitled thereto or otherwise accounted for.
Section 58, Rev. Stat. 1874, page 114, provides that executors and administrators shall be chargeable with so much of the estate of the decedent as they might or shall receive. Section 111 requires executors and administrators to exhibit accounts of their administration for settlement to the county court at the expiration of the first year after they were appointed, and every twelve months thereafter, until the duties of their administration are fully completed, and no final settlement shall be made and approved by the court until the heirs of the decedent are notified, in such manner as the court shall direct.
No account was ever rendered by the administrator to the county court for its approval; nor was any order ever made by the county court directing or requiring the administrator to pay over to the guardian any portion of the estate which was in his hands ns administrator.
The theory of the majority of the court, as I understand the opinion, is, that the presumption of law arises that Frick, as administrator, paid over the funds in his hands, after the expiration of the time provided by law for the settlement of the estate, to himself as guardian, and upon this presumption alone the sureties on the administrator’s bond are released from liability. If a presumption of that kind could arise in any ease, it is, in my opinion, rebutted by the facts presented by this record, and can have no application here. In the first place, the statute has not prescribed a definite time in which the administrator shall settle the estate, as did the statute of 1845; and hence it is not seen when it can be presumed the money passed to the guardian. Again, before an administrator can close the administration of the estate, and make distribution among the heirs, he is required to render an account to thé county court, in order that it may be known by him and all concerned what amount of money is to be distributed, and an order of distribution must be obtained. This was not done. Besides, the fact that when Frick died there were claims against the estate unpaid, and notes and accounts in his hands belonging to the estate uncollected amounting to $7800, would seem to show conclusively that Frick had not closed up the administration of the estate, and that the assets of the estate were still in his hands as administrator.
There is another fact that has an important bearing on the question. Section 22, Rev. Stat. 1874, page 560, requires a guardian to put and keep his ward’s money at interest, upon security to be approved by the court, or invest the same in United States securities; but it nowhere appears that a single dollar of the money was ever loaned as required by law. If, therefore, it is to be presumed that the guardian did his duty, as it was presumed the money passed from the hands of the administrator to the guardian, the fact that no part of the money was ever loaned or invested as guardian, would seem to be clear and direct proof that he was not acting in the capacity of guardian with the money which had come to his bauds as administrator, but still held and retained the same as administrator of the estate.
Importance is attached to the fact that a memorandum was found in a private book of Frick, after his death, which shows the amount of money which originally came into his hands as administrator, amount paid out, and that the balance belongs to his ward. I do not think this memorandum can have any bearing on the case, as it fails to show that he had the money in his possession when it was made; nor does it show in what capacity the money was in his hands. Whether Frick, as administrator, owed his ward the amount named, or whether as guardian, is entirely uncertain. But I do not regard the memorandum as competent evidence in this case. While it might be used as evidence against the administrator and his sureties for the purpose of fixing the amount in his hands belonging to the plaintiff, I am aware of no rule of evidence under which the defendants could introduce this memorandum for the purpose of showing that the administrator had paid out the money. It is a mere declaration of a co-defendant, which could not be used as evidence in his own favor. If the defendants had proven that the administrator, after sufficient time had elapsed for closing the estate, actually had in his hands the amount of money which of right should pass over to the guardian, there would be more plausibility for holding that the money passed into the hands of the guardian; but such was not the case. For aught that appears, the administrator may have squandered the funds that belonged to the estate long before it was his duty to make final settlement. Under such circumstances, no reason suggests itself to my mind why the sureties on the administrator’s bond should be released.
The evidence shows that the money came into the hands of Frick as administrator, and the least that could be required of the sureties on his bond is, to establish by proof that the administrator paid over the money to the guardian, or held it in his hands as guardian. This has not been done; but the sureties are released on a legal presumption, which may or may not have any foundation in fact. I can not sanction a doctrine which may lead to such disastrous results in the administration of estates. The better and by far the safer rule is, to require an administrator to make final settlement with the county court, and have his accounts approved and an order entered for the payment of the money in his hands to a guardian or other person entitled to the same, and an actual payment made, before the sureties are released. It was the duty of the sureties to see that the administrator faithfully discharged his trust. The bond they executed was given for that purpose, and, in my judgment, the administrator has failed to account for the money which came into his hands, and his sureties should be held responsible according to the terms and conditions of the bond which they executed.
In support of the principle announced in the opinion of a majority of the court, Carroll v. Bosley, 6 Yerger, 220, is referred to as an authority, but upon a close examination of the case it will be found that an important fact existed in it upon which the decision turned, which does not exist in this case. In the case cited, where the time expired in which the administrator was allowed to settle and close up the estate, it appeared that he had the assets in his hands ready to be paid over to the guardian, and upon that ground the court held, as he had the money ready to be paid over, by operation of law it would be vested in the guardian. It was there said: “If he had wasted the estate as administrator, before the time at which by law it was his duty to settle up and close his administration, the case would have been altered, and that fact should have been replied. But here it is averred that he had the assets in his hands; and having the money so in his hands, the amount due his ward was satisfied by way of retainer.” As it does not appear by this record that the administrator had the assets ready to be paid over when the time had expired allowed him to settle the estate, it is evident the case cited can not control here.
Karr v. Karr, 6 Dana, 4, is also relied upon, but in that case no controversy arose between the two sets of sureties; nor was there any question of defalcation in the case, and it is not perceived what bearing the case can have here.
The principal case, however, relied upon is Taylor v. Deblois, 4 Mason, 131; but the facts upon which that decision was rendered were so different from the facts of this case that it can not control here. In that case the same person was administrator and guardian; but, from a statement of facts upon which the decision was rendered, it appears that “in 1808 the administratrix signed a certificate to the probate court, stating that as guardian she had in her possession or control the full amount of the distributive share of these minors; and thereupon the court ordered a quietus to be given to her as administratrix of her husband. This quietus, in substance, stated that she having fully administered the estate, the court ordered that she be and hereby is from henceforth acquitted and discharged of the same.” Under these facts the court very properly decided that the money was held by Mrs. Deblois in the capacity of guardian; but it will be observed that the decision is founded on the fact that the administratrix made a report of her doings as such to the prohate court, which was approved, and she Avas thereupon discharged from further duties as administratrix. In her report it appeared that she then had on hand the distributive share of the money belonging to the minors. I am willing to concede that if Frick, as administrator, had made a like report, and obtained a like order thereafter, he would have held the money as guardian, and his sureties Avould have been released; but as he did nothing of the kind, the case cited can give no comfort to the position taken by the majority of the court.
The case of Wilkins v. Shaw, 2 G. & J. 220, has also been cited. I have had no opportunity to examine this case, and do not know the facts upon which the decision was rendered, but I am satisfied it will turn out, on examination, to be like the other cases.
These are the authorities relied upon to sustain the position that the sureties on the bond of the administrator are not liable, except the case of Weir v. The People, 78 Ill. 192, and the facts of that case are so widely different from this that a reference to it is not necessary. In my judgment, the authorities cited entirely fail to sustain the position taken by a majority of the court, and upon what principle the sureties on an administrator’s bond ought to be released, Avhere the administrator has disregarded all the requirements of the statute in the settlement of an estate, and finally squandered the money which belonged to the estate, and failed to pay it over, I can not well understand.