BEALL
v.
NEW MEXICO.
Supreme Court of United States.
*539 Mr. W.M. Evarts, for the plaintiff in error; Messrs. W.W. McFarland and L.P. Poland, contra.
Mr. Justice BRADLEY delivered the opinion of the court.
The first error assigned is, that judgment was entered by the Supreme Court against the sureties of the appeal bond as well as against the appellants below. This point depends on the question whether the statute of the Territory authorizing such a judgment is a valid one or not. As the legislative power of the Territory, by the organic act, extends to all rightful subjects of legislation consistent with the Constitution of the United States, it would seem to extend to such a case as this. A party who enters his name as surety on an appeal bond does it with a full knowledge of the responsibilities incurred. In view of the law relating to the subject it is equivalent to a consent that judgment shall be entered up against him if the appellant fails to sustain his appeal. If judgment may thus be entered on a recognizance, and against stipulators in admiralty, we see no reason in the nature of things, or in the provisions of the Constitution, *540 why this effect should not be given to appeal bonds in other actions, if the legislature deems it expedient. No fundamental constitutional principle is involved; no fact is to be ascertained for the purpose of rendering the sureties liable, which is not apparent in the record itself; no object (except mere delay) can be subserved by compelling the appellees to bring a separate action on the appeal bond.
The next point made is a more serious one, to wit, that an administrator de bonis non cannot maintain suit on the original administrator's bond. It is true the action is brought in the name of the Territory of New Mexico, to which the bond was given, and is so far correct; but it is expressly brought "for the use and benefit of William W. Griffin, administrator de bonis non," and the whole frame of the petition is conceived on the theory that the duty of Beall to respond for defaults and devastavits in administration is owed to the administrator de bonis non. This does not seem to be the law as understood in England or in the States which derive their principles of jurisprudence from England, although in some States statutes have been passed making it the duty of an administrator who has been displaced, or of the representatives of one who has deceased, to account to the administrator de bonis non.[*] By the English law, as administered in the ecclesiastical courts, the administrator who is displaced, or the representatives of a deceased administrator or executor intestate, are required to account directly to the persons beneficially interested in the estate, distributees, next of kin, or creditors; and the accounting may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors.[]*541 To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by the former executor or administrator, in his character as such, and kept by itself, will be so regarded; but, if mixed with the administrator's own money it is considered as converted, or, technically speaking, "administered." And all assets of the testator or intestate in the hands of third persons at the death of an administrator or executor intestate belong to the administrator de bonis non.[*] Of course debts and choses in action not reduced to possession belong to this category. In this case the claim of Hinckley's estate against his surviving partners is of this character. If anything can be realized therefrom by the prosecution of those partners, it is the duty of the administrator de bonis non to prosecute them, as much as it was his predecessor's duty to do so, before his discharge. But, for the delinquency of the former administrator in not prosecuting, he is responsible to the creditors, legatees, and distributees directly, and not to the administrator de bonis non. This is the result of the authorities referred to. And it follows that, as the administrator de bonis non has no claim against the former administrator on this ground, he cannot prosecute for it on the administration bond. It is said in Williams on Executors (referring to 1 Haggard's Ecclesiastical Reports, 139), that "if the original administrator be dead, and administration de bonis non has been obtained, such administrator may sue the executors of the deceased administrator at law on the administration bond, in the name of the ordinary; and the court will order the bond `to be attended with,' in the common-law court, and produced at the hearing of the cause."[] The authority referred to was the case of "The Goods of Hall," in which the first administrator died without having distributed the assets in *542 his hands, and leaving a considerable balance of the estate in the hands of his bankers. The administrator de bonis non having applied to the executors of the deceased administrator for his balance, and payment being refused, he commenced the action on the former administrator's bond, and the prerogative court sanctioned the proceeding. But this case was undoubtedly founded on the theory that the money in bank was a part of the original intestate's estate in specie, and, as such, that the administrator de bonis non was entitled to it. If specific effects of the estate remain in the hands of a discharged administrator or executor, or in the hands of his representatives, of course, the administrator de bonis non is entitled to receive them. And, if they are refused, he will be the proper person to institute suit on the bond to recover the amount. But this is perfectly consistent with the doctrine above expressed, that for delinquencies and devastavits he cannot sue his predecessor or his predecessor's representatives, either directly or on their administration bond.
We have been unable to find anything in the local laws or statutes of New Mexico establishing a different rule on this subject from that which prevails in States governed by the common law. The judgment must, therefore, be reversed for this ground alone, without reference to other errors assigned.
Other objections to the validity of the action are raised as that the late administrator, Beall, has not been called to account in the probate court, and no decree has been passed against him, and that no order of the probate court was obtained for leave to prosecute the bond. Many authorities show that these preliminaries are necessary to sustain the action. They will be found generally collected in the text and notes of Williams on Executors, p. i, book v, c. iv, pp. 444-448, 4th American edition. Chief Justice Redfield says: "The ordinary bond for faithful administration is not intended to transfer the jurisdiction of questions connected with such administration from the appropriate and exclusive *543 sphere of the probate courts to that of the common-law courts. But these bonds are designed to secure the enforcement of the decrees of the probate court, after they are rendered against the executor or administrator, whereby his breach of duty is established in the proper forum."[*] The bond is taken by the probate court, and is subject to its control, and the money which may be recovered thereon is ordinarily to be paid into said court for distribution as assets of the estate, unless recovered to satisfy a particular judgment or decree.[] These considerations seem to demonstrate the propriety of requiring the order of the probate court for prosecuting the bond.
Were not these considerations amply sufficient to decide the case, we should still be of opinion that the view taken by the court below on the trial, as to the nature and consequences of Beall's settlement with Hinckley's surviving partners, was very questionable, and calculated to mislead the jury. Beall's account of this settlement, as contained in his inventory of the estate filed soon after the testator's death, was as follows:
"The property, rights, and credits of the said deceased, so far as the undersigned, executor, has been able to obtain a knowledge thereof, were, at the time of his decease, as follows:
"The firm or partnership of which he was a member with Blake and Wardwell, at Fort Craig and other places in this Territory, were owing the said deceased the sum of $46,538.60. The undersigned, being satisfied that the sum stated is correct, has agreed to receive of the said Blake and Wardwell, in full discharge of the capital and profits of the said deceased, the aforesaid sum. The said Blake and Wardwell have agreed to pay the said sum as soon as they can arrange their affairs to do so, and within a reasonable time. The undersigned is satisfied that the said arrangement *544 is the best he could make for the interest of the estate, and that the payment will be made in due time."
The judge on the trial seemed to treat this statement as a clear admission of a sale; whereas in our judgment it was equally consistent with a mere liquidation of accounts; and the witness, Elkins, who was called to testify as to Beall's conversations, was obliged to admit that Beall had never told him that it was a sale, but that he, the witness, only inferred that it was such. The testimony of this witness, and the inventory and accounts of the executor being all the material evidence on the subject, ought to have been left to the jury, as well as the evidence relating to the executor's negligence.
Regarding the transaction as clearly a sale, the judge instructed the jury that the administrator had rendered himself liable for the whole claim by not taking security for its payment; whereas, if it was merely a liquidation of the accounts he would only be liable for negligence (if under the circumstances of the case he was guilty of negligence) in enforcing the claims of the estate against the surviving partners.
However, the errors which lie at the foundation of the action preclude further trial, and require that the judgment should be unconditionally REVERSED, with directions to
DISMISS THE PETITION.
NOTES
[*] Williams on Executors, 443, note (1); do., 783, note (1), 4th American edition; Wernick's Administrator v. McMurdo, 5 Randolph, 51; Hagthorp v. Hook, 1 Gill & Johnson, 270; Bank of Pen. v. Haldeman, 1 Penrose & Watts, 161; Kendall v. Lee, 2 Id. 482; Drenkle v. Sharman, 9 Watts, 485; Weld v. McClure, Ib. 495; Small's Estate, 5 Barr, 258; Carter v. Trueman, 7 Id. 320; Adams v. Johnson, 7 Blackford, 529; 2 Redfield's Law of Wills, 91 and note.
[] Ib.
[*] 1 Williams on Executors, 781, 4th American edition.
[] Vol i, p. 444, 4th American edition; p. 514, 6th English edition.
[*] 2 Redfield's Law of Wills, 92.
[] See 1 Williams on Executors, 446, 4th American edition.