Brown v. Murdock

Tuck, J., delivered the opinion of this court. This record shows that the appellees were sureties on the testamentary bond of Joseph and Louisa Murdock, as executors of Thomas Murdock, and that the bond now in suit was executed to them, as obligees, by direction of the orphans court, for the purpose of counter-securing them against loss as such sureties. The bond is dated the 21st of March 1851, and endorsed, “Approved by the court, March 9th, 1852.” The plaintiffs claim to recover the amount of a judgment rendered against them as sureties in the testamentary bond, at December term 1857, of the Circuit court for Charles county, and which they had been required to pay. The pleas filed by the appellants, who were the sureties in the bond of indemnity, cover three defences, though stated in different forms: 1st, non est factum; 2nd, that no devastavit was committed by the executors after the execution and delivery of the bond, and that every devastavit, if any was committed, occurred before the bond was given; 3rd, that the judgment set forth in the declaration was recovered against the plaintiffs, as defendants therein,” by their défault, and without any defence by them either in person or by attorney.” Issue was joined on the pleas denying the execution and delivery of the bond, and to the others the plaintiffs filed demurrers, which were ruled good.

The verdict on the issues of fact being against the defendants, they appealed, and we are to review the decisions below as well on the questions raised by the pleadings, as upon the exceptions taken at the trial before the jury. We are of opinion that the condition of the bond embraces the matter relied upon as a breach, even if we concede that the devastavit had occurred before the execution of the bond-It stipulates, substantially, that the executors shall perform ⁵³¹ their duties, as such, and from time to time, and at all times thereafter, save, defend, keep harmless and indemnify these appellees, and their property, from all actions, suits, payments, costs, charges and damages, by reason of their surety-ship on the testamentary bond. The pleas, which present this question, admit the recovery and payment of the judgment as alleged in the declaration, and repayment of the money is within the plain meaning of the instrument, unless the appellants’ counsel be correct in their construction, that it can be sued only in cases where the alleged devastavit occurred after its delivery. The Acts of 1798, ch. 101, sub-ch. 14, sec. 11, and 1S29, ch. 216, authorize bonds of this kind, where sureties conceive themselves in danger of suffering from the suretyship.

They need not wait until n devastavit shall have been committed and ascertained by process of law; in many instances this might be too late. They may proceed whenever the executor, by his conduct in the administration, shall give them cause to apprehend Joss, without waiting for legal proceedings against him at the instance of creditors. If the assets have been wasted, or are in a course of misapplication, there is a stronger reason for resorting to this protection, in order to defend themselves against tile consequences of such mismanagement on the part of the executor, though their liability to creditors cannot be ascertained until there is a judgment against their principal in the bond. Act of 1720, ch. 24.

Dorsey vs. State, 4 G. & J., 471 . Indemnity against apprehended loss, by failure of the executor to satisfy such process, we take to be within the intent and provisions of the law, and that for such purpose, the present bond was a proper precaution. * It is not a sufficient answer to say, as urged in argument, that this view of the case makes the bond operative beyond the intent of the parties in entering into the contract, and fraudulently, because retrospectively.