State Ex Rel. Bounds v. Graham

Boyd, C. J., delivered the opinion of the Court. A demurrer to the amended declaration filed in this case was sustained by the lower Court and judgment was entered for the defendants for costs. From that judgment this appeal was taken. The suit was brought in the name of the State, “at the instance and for the use of J. Windsor Bounds” by his attorneys, on a trustee’s bond executed by the appellee.

The declaration alleges that Mr. Graham was appointed trustee and gave the bond which is set out in full, and is subject to the usual conditions in bonds of that character; that the trustee became possessed of a large amount of the assets of the trust estate and distributed the funds among the parties entitled thereto by an audit, which was duly and finally ratified on the 21st of June, 1906; that by said audit the sum of $168.69 was audited' and allowed to the .plaintiff to be paid by the trustee and the trustee was ordered by the Court to pay said sum “with the due proportion of interest.” It then alleges that said sum was “the amount overpaid by the said J. Windsor Bounds as administrator of Train A. Bounds, that is to say, paid by him as such administrator beyond and above the assets which came to his hands as such administrator;” that the trustee had due and legal notice of the final ratification of the said audit and demand was made before the bringing of this suit upon him for the payment of said sum “So ordered to be paid to the said J. Windsor Bounds,” but the trustee has not paid the same, etc. ⁵²² We confess that it would be difficult for us to understand upon what ground the demurrer was sustained, bu+- for the brief of the appellees which we suppose states the ground relied on below, as no other is given. It says that the real plaintiff, J. Windsor Bounds, claims that there is audited to him individually the sum of $168.69, and then claims the same sum as due him as administrator. It is then contended that “the two claims are repugnant and cannot be the same cause of action in the same suit,” and it is argued that if Bounds overpaid said sum as administrator he could not recover individually for the overpayment or proceed against the real estate for the payment of his debt, but it would be a debt owing to him as administrator. There axe two conclusive answers to the contention of the appellees.

In the first place the equitable plaintiff does not claim the sum as administrator, but he sues individually and alleges that the amount was distributed to him. It was unnecessary to state how the sum became due to the plaintiff, but if it be assumed that Bounds was not entitled to have the money distributed to him individually, because he had made the overpayment as administrator, that would not be an answer to this suit. The Harr distinctly and in terms alleges that it was audited to the plaintiff,