Bond-Executors and administrators—Joint and several liability.

1. Where two administrators give a joint bond, with surety, for the faithful administration of the estate that may come to their possession, and thereafter all the property of the deceased comes into their joint possession, if waste is committed by one of the administrators, after the death of the other, it will be the right of the surety, that the estates of both the administrators shall be exhausted before the surety shall be subjected for the surviving administrator's default.

2. Such administrators, as between themselves and the surety, are principals, and the surviving administrator and the representatives of the deceased administrator, will be jointly liable to indemnify the surety, if he has been subjected for the waste committed by one of the principals after the death of his associate.

(Decided February 21, 1888.)

ERROR to the District Court of Stark County.

Eckert v. Myers.

The original action was commenced on an administrators' bond in the court of common pleas of Stark county, by Harmon W. Landrock, one of the defendants in error, against his co-defendants in error, Henry Engle, William G. Myers, administrator of Samuel Engle, deceased, and the plaintiff in error, Francis Eckert, to recover the amount of a claim for work and labor, done and performed by Harmon W. Landrock, for Daniel Engle, deceased, as a partner in the firm of Engle & Brother. Henry Engle and Samuel Engle, on the decease of Daniel Engle, were duly appointed and qualified as administrators of his estate. The administrators' bond contained, among other conditions, the following, to-wit :

"Know all men by these presents, That we, Samuel Engle and Henry Engle as principals, and Francis Eckert as surety, are held and firmly bound to pay the state of Ohio the full sum of six thousand dollars if default be made in the condition following: The condition hereof is such that, whereas, letters of administration on the estate of Daniel Engle, deceased, were granted the said Samuel Engle and Henry Engle, by the probate court of Stark county, state of Ohio, on the 22nd day of January, A. D. 1867. Now, if the said Samuel Engle and Henry Engle, as administrators of the said Daniel Engle, deceased, shall administer according to law, all the moneys, goods, chattels, rights and credits of the said deceased, and the proceeds of all his real estate that may be sold for the payment of his debts, which shall at any time come to the possession of the said administrators, or to the possession of any other person for them; shall pay any balance remaining in their hands, upon the settlement of their accounts, to such persons as said court or the law shall direct; then, but not otherwise, shall this obligation be null and void."

A jury having been waived by all the parties, the cause was submitted to the court, and the court, upon the request of the defendant, William G. Myers, administrator of Samuel Engle, deceased, that its conclusions of fact be separately stated from its conclusions of law, finds, as its conclusions of fact, as follows, viz.:

Eckert v. Myers.

"1st. That Daniel Engle died January sixth, A. D. 1876; that on the 22nd day of January, 1876, the defendant, Henry Engle and Samuel Engle, were duly appointed and qualified as administrators of the estate of said Daniel Engle, deceased, by the probate court of Stark county, Ohio, and executed their joint and several bond, with Francis Eckert, their surety, and filed the same in said probate court, which bond was on the same day approved by the judge of said court, and recorded.

"2nd. That the property and estate of the said Daniel Engle, deceased, consisted of his undivided one-half of a planing-mill at Canal Fulton, and certain live stock and other chattels upon the farm of said Samuel Engle, which were his undivided property at the time of his death. Said planingmill was owned by said Daniel and Henry Engle, partners, doing business in the firm name of Daniel Engle & Bro. ; that said live stock and other chattels had been upon said farm for some time prior to the death of Daniel; that all of said property remained as it was before Daniel's death up to the time of appraisement March 1, 1876, and was in the joint possession of said Henry and Samuel Engle; that on the morning of the appraisement, to-wit, March 1, 1876, Samuel Engle was rendered unconscious from a stroke of paralysis, and took no part in said appraisement; remained unconscious and died in about two days thereafter, and said property was inventoried and appraised by said Henry, and return thereof made by him, in his own name, to the probate court. Said Samuel Engle had joined said Henry Engle in giving notice of the appraisal of said estate of Daniel Engle & Bro. Henry Engle, surviving administrator, after the death of said Samuel, proceeded to, and did, administer and settle said estate in his own name as sole administrator.

"4th. That no waste or default of the assets of said estate occurred during the lifetime of Samuel Engle, and that all of said assets were taken in possession by said Henry Engle as such surviving administrator.

"5th. That the claim of the said plaintiff was duly presented to said Henry Engle as such administrator after the

Eckert v. Myers.

death of Samuel, and allowed by him as a valid claim against said estate, and that there is now due and unpaid thereon the sum of four hundred and eighty-seven dollars and twenty-nine cents ($487.29), and interest from October 15, 1883, and that prior to the beginning of this action said plaintiff demanded payment of his said claim of William G. Myers, administrator of the estate of Samuel Engle, deceased, which was by said Myers refused.

"6th. That the said Henry Engle is insolvent, and has failed to pay over according to law, and in pursuance of an order of the probate court, heretofore made, the sum of $943.41, then found in his hands, in a hearing upon exceptions to his final account as such administrator in said court, which order and finding were made in said court August 23, 1879; that there are no other unpaid claims due creditors of said Daniel Engle, deceased; that said plaintiff, after the order of said probate court, and in pursuance thereof, was entitled to the payment of his said claim against said estate of Daniel Engle, deceased, out of said fund so found in the hands of said Henry Engle, as administrator aforesaid. That more than thirty days after said order, to-wit, September 23, 1879, the said plaintiff demanded payment of his said claim of Henry Engle as administrator aforesaid, which was refused."

And as conclusions of law "the court finds that said plaintiff is entitled to recover a judgment against said Henry Engle, and the administrator of Samuel Engle, deceased, for said sum of $487.29, as principal debtors, and against said Francis Eckert as surety for said sum, together with costs, to which finding of law from the facts above stated, said administrator of Samuel Engle, deceased, excepts and files his motion for a new trial, which the court overrules, and said defendant excepts. It is therefore considered by the court that said plaintiff recover of said Henry Engle and William G. Myers, as administrator of Samuel Engle, deceased, as principal debtors, and said Francis Eckert as surety only, the sum of four hundred and eighty-seven dollars and twenty-nine cents ($487.29), with interest from October 15, 1883 (the first day of this term), and costs of suit, taxed at $- ; said judgment

Eckert v. Myers.

against said Myers as administrator aforesaid, to be levied of the goods, chattels and estate in the hands of said administrator to be administered. To which said defendant, Myers, administrator aforesaid, excepts."

Myers, administrator, filed his petition in error in the district court, which court reversed so much of the judgment of the court of common pleas as was against him, and adjudged that, as administrator of Samuel Engle, deceased, he was not liable on the bond in suit, to the action of Harmon W. Landrock, the devastavit complained of having taken place after the death of Samuel Engle, as appears in the special finding of fact; but that Landrock recover of Henry Engle, as principal, and Francis Eckert as surety.

Francis Eckert now seeks to reverse the judgment of the district court.

R. W. McCaughey and J. J. Parker, for plaintiff in error. The weight of the authorities is to the effect that co-administrators who give a joint and several bond, are both liable for waste of either to a surety who has paid money upon breach of such conditions of a bond. Babcock v. Hubbard, 2 Conn. 536; Boyd v. Boyd, 1 Watts (Pa.), 369; Dobyns v. McGovern, 15 Mo. 662; Brandt Sur. & Guar. sec. 408; Seymour v. Stole, 4 West. L. M. 323.

W. G. Myers, in person, and Albaugh & Welty, for defendants in error.

None of the assets of the estate came into the hands of either of the administrators prior to the death of Samuel, and no waste or default of the assets occurred during the life time of Samuel. All the assets were taken possession of by Henry, as surviving administrator. The acts of Henry could in no way be considered the acts of both. Suppose that Samuel had resigned, or been removed by order of probate court, before assets came into their hands, and that Henry had proceeded to settle the estate as sole administrator, as he might do, could it be successfully claimed that he would be liable after such resigVOL. 45-34