Opinion
Argued June 18, 1874
Decided September 22, 1874
Wm. Henry Anthon for the appellants. W.W. MacFarland for the respondents.
The statute provides that every administrator shall, before receiving letters of administration, execute a bond with sureties, to be approved by the surrogate, conditioned that he shall faithfully execute the trust reposed in him as such, and also that he shall obey all orders of such surrogate touching the administration of the estate committed to him. (2 R.S., 77, § 42.) The statute defines the cases in which letters of administration may be issued, which include the issuing of letters of administration with the will annexed, as also in case of general intestacy. Whether the administration is general or special, the appointee has the same legal character, and is properly denominated an administrator. In either case, he derives his title to the personal assets of the deceased solely from the appointment.
The position of a general administrator, and an administrator cum testamentum annexo, differs in this: that in the latter case, the will, so far as it is consistent with law, is the rule for the management and distribution of the estate, and in the former the ultimate right to the personal assets is regulated by the statute of distributions. Both kinds of administration were recognized in the statute 21 Henry 8, chapter 5, and various and definite provisions are found in our statutes relating to the latter When the appointment of the executor fails, either by his renouncing, or his neglect to qualify, or by reason of his being legally incompetent to act, letters of administration with the will annexed are to be issued, and also when his authority has been revoked or terminated after he has commenced the execution of the trust. Special provision is made for security to be given by the administrator with the will annexed (sec. 45), who (the statute declares) shall give bonds in the like penalty with like sureties and conditions as are required of administrators, and shall have the like power and authority. The bond upon which this action is brought was given on the appointment of Mrs. Levy as administratrix de bonis non of the estate of her husband, upon issuing to her letters of administration with the will annexed, after the revocation by the surrogate of letters testamentary previously granted to the executors named in the will. The condition of the bond follows the words of the statute. The administratrix and her sureties undertake that she shall faithfully execute the trust reposed in her as administratrix, and obey all orders of the surrogate touching the administration of the estate. It is true that her special character as administratrix with the will annexed is not recited in the bond, but this was not essential to its validity. Whether she was a general or special administratrix, would have been disclosed by an examination of the order appointing her, and the bond must be held to refer to her acts and conduct in the actual character and relation to the estate which she held by virtue of that appointment. The bond was given for the security of creditors and other persons interested in the estate, and the ignorance of the sureties, when they executed the bond, of the real nature of the administration, or that they may have been misled or deceived by those at whose solicitation they executed it, as to the nature or degree of the responsibility they assumed, cannot avail them as a defence against the claims of persons for whose security it was taken, and who were in no way connected with the deception practiced upon them. The insertion of the words "with the will annexed," in the bond after its execution, by one of the clerks in the office of the surrogate, without the consent of the obligors, did not change its legal force or character, and his unauthorized act does not avoid the instrument, or relieve the obligors from liability under it, as originally executed. The alteration was immaterial, and was made by a person who stood in the position of a stranger to the parties claiming under it. In such a case the altered instrument may be enforced according to its original terms. ( Jackson v. Malin, 15 J.R., 293; Waring v. Smyth, 2 Barb. Ch., 119; Rees v. Overbaugh, 6 Cow., 746; Malin v. Malin, 1 Wend., 625; United States v. Hatch, Paine, 336.)
The defendant is concluded by the decree of the surrogate from contesting the liability of the estate for the debt of the plaintiff. This question was directly adjudged by the decree, and the administratrix was directed to pay the debt found to be due to the plaintiff out of the assets in her hands. It is by no means certain that the plaintiff's claim was a charge against the estate of the testator. The contract upon which it was founded was made with the administratrix and within the case of Ferrin v. Myrick ( 41 N.Y., 316), she was liable upon it personally and not as administratrix. But the question whether the plaintiff's demand was a debt against the estate, was necessarily determined by the surrogate on the accounting, and so long as the decree stands unreversed, it cannot be questioned in a collateral action either by the administratrix or her sureties. Sureties are bound by the decree of the surrogate in such a case, because by their contract they have made themselves privy to the proceedings against their principal, and when the principal is concluded, the surety, in the absence of fraud or collusion, is concluded also. ( Douglass v. Howland, 24 Wend., 35; Jackson v. Griswold, 4 Hill, 522; Annett v. Terry, 35 N.Y., 256; Baggott v. Boulger, 2 Duer, 160.)
But neither the principal nor sureties are bound by the decree, if the surrogate had no jurisdiction to pronounce it. It is claimed that the revocation of the letters of administration, after the proceedings for the final accounting were instituted, and before the decree was made, ousted the surrogate of jurisdiction, and that an accounting thereafter could only be had in a new proceeding at the instance of the person succeeding to the administration of the estate, pursuant to the sixty-eighth section of the statute. This position cannot, we think, be maintained. A final accounting under the statute can be had on the application of the administrator or executor. In this case the surrogate acquired jurisdiction of the proceedings upon the application pursuant to the statute for a final accounting, made by the administratrix, and when jurisdiction is once acquired, we see nothing in the statute which prevents the surrogate proceeding to a final decree, although meanwhile the authority of the administratrix may have been revoked. It is proper and it may be necessary that a new administrator should be appointed to represent the estate before continuing the proceedings, and it does not appear that this was not done, and if necessary to sustain the proceedings it will, in the absence of proof, be presumed that a new appointment was made.
The judgment of the General Term should be affirmed.
All concur, except RAPALLO, J., not voting.
Judgment affirmed.