Mertens v. Moore

Burke, J,, delivered the opinion of the Court. Suit was brought in the Circuit Court for Washington County by certain creditors against the administration bond ⁶³⁷ given by Virginia B. Moore, the administratrix of the personal estate of J. Jesse Moore, deceased. An account was stated and filed by her, as such administratrix, in the Orphans’ Court for that county, by which it appeared that certain sums of money, stated in the declaration, were due and payable to the plaintiffs as creditors of said deceased. This account was approved and passed by the Court.

The declaration alleges that it was the duty of the administratrix, after the account had been stated and approved, to pay the plaintiffs the several sums of money therein distributed to them. The breach of the bond set forth in the narr is alleged to be the failure and neglect of the administratrix to pay to the plaintiffs the amounts distributed to them by the account. The Court, upon demurrer, filed by the defendants, held the declaration bad. There was no judgement entered on the demurrer; but a written agreement has been filed to the effect that the order of the lower Court sustaining the demurrer shall be treated, for the purpose of the appeal, as a final judgment.

The legal question raised on the record is a narrow one, and presents, we think, little difficulty. Its solution depends upon the true construction of sections ioo and 104 of Article 93 of the Code of 1904. Section 100 of that Article provides: “An administrator shall discharge all just claims known to him, and pay each claimant his just proportion of the money then in his hands (retaining as herein directed), within thirteen months from the date of his letters, or within such further time, not exceeding four months longer, as shall be allowed by the Orphans’ Court, on his making oath that he hath reason to apprehend that the personal estate and assets which are or shall be in his hands will be insufficient to discharge the just debts of and claims against the deceased; it shall likewise be his duty, once in every term of six months, after the first distribution, to make a distribution of the money which hath since come to his hands, until he shall have fully administered, and on failure, his administration bond may be put in suit.” Section 104. declares: “No creditor shall bring a suit upon an administration or testamentary bond for any debt or damages due ⁶³⁸ from or recovered against the decedent before a non est on a summons is returned against the administrator, or a fieri facias returned nulla bona by the Sheriff of the county where the administration was granted, or where the effects of such deceased lie, or such other apparent insolvency or insufficiency of the estate of such administrator as shall, in the judgment of the Court, render such creditor remediless by any other reasonable means save that of suing such bond.” The proposition asserted by the plaintiffs is that, after the amounts due them had been ascertained by the account filed by the administratrix, they had a right to proceed directly against the bond under section ioo, and that section 104 does not apply to cases where the claim of the creditor has been ascertained or established. The position of the defendants is that no creditor, no matter whether his claim is established or not, can bring suit upon an administration bond until the conditions specified in section 104 have been complied with, or until the apparent insolvency, or insufficiency of the estate of the administrator shall be shown to the Court.

If the position of the defendants be sound, it must be admitted that the declaration was insufficient, as it does not show a compliance with those conditions, or the existence of the facts specified in