dissented from so much of the opinion as held that the appellant became the surety of his co-administrator : “ He executed the bond as a principal, and not as a surety, and he can not be held liable as a surety.” After quoting the language, in part, of section 19 of the decedents’ estates act,. the learned Judge added : “ The statute imperatively requires a separate bond for each executor or administrator. The bond in suit not being a good common-law bond, and not being authorized by statute, is illegal and void.”
It is very evident, we think, that the attention of the court was not directed, in any of the cases cited, to the provisions of the act of March 11th, 1867, above set out, or of section 790 of the practice act. For, if these statutory provisions had been considered in connection with those cases, we may reasonably suppose that the court would have probably arrived at very different conclusions. The effect of the provisions of section 790 of the practice act, upon informal, illegal or defective bonds, taken by an officer in the discharge of the duties of his office, has recently been the subject of full consideration by this court, in a number of.eases ; and it has been uniformly held, that the effect of the statute is to legalize and validate the bond in question, and make of it just such a bond as was contemplated and called for by the terms of the statute which required its execution. Railsback v. Greve, 58 Ind. 72; Fuller v. Wright, 59 Ind. 333 ; Miller v. McAllister, 59 Ind. 491; Yeakle v. Winters, 60 Ind. 554. The Vincennes National Bank v. Cockrum, 64 Ind. 229 ; Turner v. The State, ex rel., 66 Ind. 210; and Graham v. The State, ex rel., 66 Ind. 386.
So, we hold, in the case at bar. The bond in suit is, as required by the statute, the separate bond of each of the *35administrators of the estate of Jacob Wyant, deceased. Therefore the relatrix, Maria Wyant, is not a surety in the separate bond of Benjamin Wyant, as administrator; and, therefore, she is neither a proper nor a necessary party defendant to a suit on his separate bond to recover damages for breaches committed by him alone.
After Benjamin Wyant’s resignation of his trust, as such administrator, it became the duty of the relatrix, as the remaining administrator, under section 16 of the decedents’ estates act, to “complete the administration of the estate■ and, in the discharge of this duty, she was expressly authorized, in and by section 162 of said act, to bring and maintain this action upon the separate bond of said Benjamin Wyant, against him and his sureties therein. 2 R. S. 1876, p. 549.
In conclusion, we hold that the court erred in sustaining the appellees’ demurrers, and each of them, to the complaint of the appellant’s relatrix.
In so far as the decision of the cause now before us is in conflict with the cases of Braxton v. The State, ex rel., 25 Ind. 82, Prichard v. The State, ex rel., 34 Ind. 137, and Moore v. The State, ex rel., 49 Ind. 558, the latter cases are overruled.
The judgment is reversed, at the appellees’ costs, and the causéis remanded with instructions to overrule the demurrers to the complaint, and for further proceedings in accordance with this opinion.