State ex rel. Stockbridge v. Smith

Stone, J., delivered the opinion of the Court. This is an action on the bond of Michael Smith as administrator with the will annexed of James O’Neill. Some time after the bond was given, upon a caveat the will of James O’Neill was declared void, and the letters to Smith were revoked. The Orphans’ Court then granted letters to the appellant, Stockbridge, and Smith having failed and refused to render the account required of him by order of the Orphans’ Court, and to pay over to the new administrator all the property remaining unadministered in his hands, the Orphans’ Court ordered the new administrator to bring suit on the bond of Smith the administrator with the will annexed.

At the trial of the case below the Court refused all the prayers offered, both by plaintiff and defendants, and gave the following instruction : “The Court instructs the jury that the true construction of the bond sued on is such, that its condition imports a contingent liability, strictly limited to the particular capacity therein expressed, of an administrator with a will annexed, which liability cannot be altered or ¹⁰⁶ enlarged by implication to include or reach a capacity not therein mentioned, of an administrator of an intestate estate, and the defendants are therefore entitled to a verdict.” If the Judge below was right in this instruction, there is an end of the case, and we will first consider that instruction. The condition of the bond sued on is as follows : “ The condition of the above obligation is such, that if the above bounden, Michael Smith, shall well and truly perform the office of administrator with the will annexed of James O’Neill, late of Baltimore City, deceased, according to law, and shall in all respects discharge the duties of him required by law as administrator with the will annexed aforesaid, without any injury or damage to any person interested in the faithful performance of the said office, then the above obligation shall be void, it is otherwise to be in full force and virtue in law.” By signing that bond Michael Smith and his sureties became bound to perform all and everything that the law required Smith as administrator with the will annexed, to do, and our inquiry will be directed to ascertaining what the law does require an executor, or administrator with the will annexed to do, in case the will is decided to be void after the grant of letters and the giving of the bond. B'y sec. 320 of Art. 93 of the Code, it is provided that if after letters testamentary are granted the Court shall decide against the probate of a will, the letters shall be revoked. By sec. 243 of the same Article, it is provided that whenever the Orphans’ Court shall revoke letters testamentary or of administration, and the party whose letters shall be revoked shall not within a reasonable time deliver over to the new administrator all the unadministered assets in his hands, the Court may direct suit on his bond.

These two sections contain the whole law applicable to this case, and declare in most unmistakable terms that it ¹⁰⁷ shall be the legal duty of an executor (and an administrator with the will annexed, stands upon precisely the same footing) whenever the will is set aside after he has taken out letters and given bond, to deliver over to the new administrator all the unadministered property in his hands, and if he does not his bond is liable. When therefore, Michael Smith and his securities signed that bond, they all covenanted that he should perform the