State ex rel. Love v. Dilley

Miller, J., delivered the opinion of the Court. This suit was brought on the 2d of June, 1884, by a distributee of Joseph Dilley, deceased, upon the bond of Barney Dilley, as administrator of that estate. The declaration was filed on the 22nd of August, 1884, and assigns four breaches. To this declaration there was a general demurrer, which the Court below sustained, and hence this appeal hy the plaintiff in the action.

The bond bears date the 29th of March, 1819, and it also appears from the third breach assigned, that the plaintiff and her husband, on or about the 15th of June, 1880, filed a bill in equity in the Circuit Court for Allegany County, against the administrator and others, and thereby prayed that said Barney should be required to account for all the money and other property received by him as such administrator, and that such proceedings were had upon that bill that the equity Court decided and decreed that it would assume jurisdiction over the settlement of said personal estate, and refer the proceedings therein to the auditor of that Court to state an account between the said Barney as administrator and the said personal estate. After the equity Court had thus assumed jurisdiction, it became the duty of the administrator to account-in that Court and in no other tribunal. If he has so accounted, he has discharged his duty in that respect “according to law,” and the only obligation resting upon him is to pay the amount which that Court has ascertained and determined he is liable for to the several parties who are by the decision of that Court entitled to receive it. ³¹⁹ Not only, however, does the declaration fail to aver that this amount has been finally determined by the equity Court, but the records of this Court in that case show that this matter is still unsettled, and that the question as to the amount for which the administrator is liable to the several distributees is still undetermined. Upon this state of facts, it is obvious that no substantial recovery can at present be had in an action at law on this bond.

When the equity case is finally decided, and the amount of liability thereby ascertained, an action on the bond will undoubtedly lie if the administrator shall fail to pay over the same as the equity Court shall direct. In that event the obligation of the sureties can easily be enforced in an action at law and a substantial recovery had against them. All this was conceded in argument by counsel on both sides; but counsel for the appellant, while