Kealhofer v. Emmert

Bryan, J., delivered the opinion, of the Court. Kealhofer and Armstrong, administrators d. b. n. c. t. a. of Louisa J. Berry, deceased, by petition in the Orphans’ Court of Washington County, claimed the benefit of sections 224 and 225 of Article 93 of the Code. Section 224 requires every executor when he returns the list of debts due to his testator, to include among them any just claim which the decedent had against him. On Ms failure to do so, any person interested in the administration is authorized to allege the same by petition to the Court, and thereupon proceedings are directed for establishing it.

Section 225 makes the same provision in the case of administrators; and further enacts that all commissions allowed to the executor or admimstrator shall be applied towards the payment of any such claim so returned or established. The facts shown to our satisfaction by the record are as follows: In eighteen hundred and eighty, Mrs. Berry and George W. Pole became sureties on the bond of William M. McDowell, as executor of Jacob Schneider. In eighteen hundred and eighty-five, McDowell became the executor of Mrs. Berry, and Elias Emmert and George W. Pole became sureties on Ms testamentary bond. McDowell was removed from the executorsMp of Mrs. Berry’s estate, and the appellants were appointed administrators de bonis non c. t. a.

An action being brought on the bond executed by McDowell as executor of Schneider, a judgment was rendered against the appellants, as admimstrators d. b. n. of Mrs. Berry, by reason of her suretyship on the bond, and they were compelled to pay it out of the assets of her estate. The money thus paid was in satisfaction of the breaches of McDowell’s bonds, and Mrs. Berry had rendered herself liable for these breaches by becoming surety for him. Her estate paid the money for Ms benefit. If this payment creates a just claim against McDowell, then, by the express language of the.

Code, it ought to be re ²⁵¹ turned as a debt due by bim to Mrs. Berry, Ms testatrix. "When sbe signed Ms bond as surety, she became responsible for Ms faithful discharge of his duties as executor of Schneider; and that responsibility was enforced against her estate by a judgment against her administrators for his delinquency. We know of no reason whatever why McDowell ought not to repay this money. It is, in our judgment, in every circumstance and feature a just claim against bim.

It is of no consequence that the money was not paid until after Mrs. Berry’s death; she became responsible for McDowell’s fidelity when she signéd his bond, and at the same time he incurred a reciprocal responsibility to indemnify her, in case she should incur loss by Ms unfaithfulness in the discharge of Ms duty. Her death did not extinguish the obligations wMch she assumed; nor did it impair the legal rights which she had acquired. Her admimstrators stand in her place to do and receive what the law adjudges in respect to her acts and contracts. When