#### *Dabney’s Adm’rand Others v. Smith’s Legatees.

January, 1834,

Richmond.

(Absent Brooke and Green. J.)

Public Administrators — Deputy Sheriff — Continued Liability of Sheriff after Expiration of Office.* — Administration of a decedent’s estate cum testamento annexo was committed to a sheriff under the statute of 1793. 1 Old Rev. Code. ch. 93, § 61, and the administration was conducted by his deputy, and, for the most part, after the sheriff's term of office expired: Held, the administration did not devolve on sheriff's successor, but he was bound to complete it, and he and his official sureties are answerable for his deputy’s administration after as well as before the expiration of his office.

SheriffrAdministrator — Decree against Sureties of†— Account of Administration by Sheriff’s Representatives Unnecessary. — In a suit in chancery by the legatees against the personal representatives of the sheriff, of his deputy, and of his official sureties, decree first against the representatives of the sheriff and of the deputy, for balance due; and fi. fa. on the decree returned nulla bona testatoris: Held, no necessity to direct accounts of administration by their representatives, to ascertain ■whether they have committed a devastavit, before proceeding to decree against the sheriff’s sureties.

Same — Same—Necessary Parties. — Nor necessary to make the heirs of the sherifi and the deputy parties, to inquire whether any real estate descended to them, before proceeding to decree against sureties.

Same — Same — Insolvency of Surety — Effect.—Nor

necessary, two of the sureties being proved to have died insolvent, to order accounts of administration of their estates, before decreeing against the solvent sureties.

Chancery Practice — Decree on Notice and Motion under Reservation in Former Decree. — Decree being first against the representatives of the sheriff and his deputy, with liberty to apply to court for decree against representatives of the sureties, the executor of one of the sureties dies, and then without reviving the suit against his administrator de bonis non, notice is given to him of a motion for a decree against him ; and upon such notice, the decree is made against him: Held, the proceeding is regular.

Benjamin Smith, late of Dinwiddle, died testate in 1802, but the executors named in his will having failed to qualify as such, and no person having applied for administration, the county court of Dinwiddie in 1803 (under the statute of 1792, 1 Old Rev. Code, ch. 92, § 61), committed the administration of the testator’s estate with his will annexed to Buller Claiborne sheriff of the county for the time '*’being. Buller Claiborne had executed the usual official bond, with the condition required by the statute 1 Rev. Code, ch. 78, *'£*12, p. 278, and in this bond, George Pegram, Robert Williams, Nathaniel Dabney and Isham Dabney, were bound as sureties. The surety, Isham Dabney, was also a deputy of Claiborne the sheriff; and he in fact administered Smith’s estate; but almost all his transactions in the administration, were posteriour to the termination of Claiborne’s shrievalty.

The legatees of Smith exhibited their bill in the superiour court of chancery of Richmond, against the administrator and heirs of Claiborne, the administrator of Pegram and Williams, Isham and Nathaniel Dabney, setting forth the facts above stated, and praying an account of the administration of Smith’s estate, and a decree against the administrator or heirs of Claiborne, and his sureties in his official bond, for the *16balance that should be found due to the plaintiffs.

Pending the suit, most of the original parties defendants died, and the first representatives of them, respectively, also died, and the suit was, from time to time, regularly revived, except as to the representative of the defendant Williams; after the death of whom, it was regularly revived against his executor, but he also died before the final decree, and there was no revival, by the usual process, against Williams’s administrator de bonis non.

An account was ordered of the administration of Smith’s estate by Isham Dabney, the deputy of Claiborne the sheriff: and the commissioner’s report shewed a balance due from Dabney to Smith’s legatees of 1430 dollars, principal and interest computed to the 1st January 1830.

It appeared, very clearly, that no assets had come to the hands of the personal representative of either Claiborne, the sheriff, or Isham Dabney, the deputy, who actually administered Smith’s estate and one of Claiborne’s sureties, or Pegram, another of his sureties; and no accounts of the administration of those estates were required: the estates of the sureties Williams and Nathaniel Dabney "only were solvent. It appeared, however, that Claiborne, the sheriff, had a claim to a bounty in land for military services, for which his heirs obtained a land warrant after his death; but this land was in the state of Ohio. No inquiry was made as to real estate left by Pegram and Isham Dabney, nor were their heirs ever made parties.

The chancellor first made a decree against the administrators of Claiborne and of Isham Dabney, that they should pay, out of the estates of their intestates, respectively, the balance of 1430 dollars found due Smith’s estate, to the plaintiffs his legatees; reserving liberty to them to resort to the court for a decree against the other defendants, if this decree should prove unproductive.

At the time this decree was made, the executor of the surety Williams, against whom the suit had been'regularly revived, was living and before the court; but, it seemed he died soon afterwards, though his death was not suggested on the record; and administration de bonis non with the will annexed of Williams was committed to another person.

A fieri facias having been sued out on the decree against the representatives of Claiborne and of Isham Dabney, and returned “no effects of either decedent,” the plaintiffs gave a notice to the administrator of Pegram, the administrator of Nathaniel Dabney, and the administrator de bonis non with the will annexed of Williams (though there had been no process to revive the suit against him), of a motion to be made in the circuit superior court of law and chancery of Henrico (to which the cause had been transferred), for a decree against them for the amount due. And thereupon, the circuit court decreed, that the administrator of Nathaniel Dabney and the administrator de bonis non of Williams, should pay the balance of 1430 dollars &c. de bonis testatoris, respectively, without making any decree against Pegram’s administrator.

From this decree, the representatives of Nathaniel Dabney and of Williams applied by petition to this court, for an appeal, which was allowed.

"The attorney general for the appellants, objected to the proceedings and decree, 1. That, as it appeared that the administration of Smith’s estate had been conducted wholly by Isham Dabney, the deputy sheriff, his estate, real and personal, and his sureties in his bond to Claiborne the sheriff for the faithful discharge of his office of deputy, ought in equity to have been charged with the debt in the first instance; yet no account was required of the administration of Isham Dabney’s personal estate, and neither his sureties nor his heirs were made parties. 2. That the estate of Claiborne the sheriff, real as well as personal, should have been charged with the whole debt in exoneration of his sureties; yet no account of his personal assets was required; and though his heirs were parties, and it appeared that he left real estate, no step was taken to ascertain its value, and to subject it to the debt. 3. That if a decree was proper against the sureties, under the circumstances of the case, the decree should have been against the representatives of all, not, as it was, against those of Williams and Nathaniel Dabney only, without any regular inquiry as to the assets, real or personal, of the other two, Isham Dabney and Pegram, whose representatives, real and personal, were bound to contribute. Accounts of the administrations of the estates of Pegram and Isham Dabney, were necessary; since they might have shewn waste committed by their representatives, which would have made them personally liable. 4. That the decree against the administrator de bonis, non of Williams, was irregular, because the suit had never been revived against him, nor had the death of Williams’s executor-been suggested on the record: the notice to the administrator de bonis non, on which the decree against him was made, was not process: he was, in fact, not a party to the proceedings. And 5. That the official bond of a sheriff, as the law stood at the time this bond was executed (it had since been amended,) did not bind the sheriff as sheriff, or his sureties, for his transactions as committee of a decedent’s estate, much less for the transactions of his deputy in the administration. The Auditor v. Dryden, 3 Deigh 703. *And, at any rate, the sheriff and his official sureties were not responsible for the transactions of his deputy in the administration, after the expiration of his term of office; and here, the administration of Dabney, the deputy, was transacted, for the most part, after the termination of his principal’s shrievalty.

Spooner, for the appellees,

answered, that as it clearly appeared, that the personal estate of Claiborne the sheriff, of Isham Dabney, his deputy as well as one of his. sureties, and of the surety Pegram, were utterly insolvent, it would have been an idle waste of time, and a useless aggrava*17tion of costs for which the solvent sureties would have been responsible at last, to have required accounts of administration of their estates; and this consideration obviated the objection to the final decree, that it was against two of the sureties only; since they were the only parties chargeable, whose estates were solvent. He said, that it did not clearly appear, that the heirs of Claiborne inherited any land from him, which could be charged with his debts: they obtained a warrant for land bounty for his military services, after his death; but the land to which the warrant entitled them, lay in the state of Ohio, and the appellees were not bound to go there after it. Nor could they be required to pursue the sureties of the deputy sheriff. The appellees were entitled to recover their whole demand against each and every one of the sheriff’s sureties, and out of the personal estate of each and every one: they were not bound to pursue the real estate of either of them in the hands of his heirs, in order to exonerate the estates of the solvent sureties, whose representatives might have recourse, if they thought proper, to the heirs of their co-sureties for contribution, or to the sureties of Dabney, the deputy, for indemnification. He cited Sheppard’s ex’or v. Starke and. wife, 3 Munf. 29, to shew, that the proceeding against Williams’s administrator de bonis non, by notice and motion, was regular and proper. And as to t,he last objection, he said, that the administration of the decedent’s estate was committed to Claiborne as sheriff; the duty of administering the estate was imposed on him by *law in his official character; and it was provided in the condition of his official bond, in the most general terms, that he should, in all things, faithfully execute his office of sheriff, during his continuance therein. And he maintained, that the administration of Smith’s estate having been committed to the sheriff, he could not, at the expiration of his office, have devolved the duty of the administration to his successor: it belonged to his official authority and duty to complete the administration, settle the accounts, and distribute the surplus.

*

Public Administrators — Deputy Sheriff — Continued Liability of Sheriff after Expiration of Office.- It seems well settled that, where the administration of a decedent’s estate is committed to the hands of a sheriff, it is his duty to complete the administration notwithstanding the expiration of his official term before such completion ; and, further, if the administration is conducted by the sheriff's deputy, the sheriff and his official sureties are responsible for said deputy’s administration *after*as well as *before*the expiration of the sheriff’s term of office. Douglass v. Stumps, 5 Leigh 395, 396 : Tyree v. Wilson, 9 Gratt. 59. 62, and *foot-note*: Mosby v. Mosby, 9 Gratt. 601 ; Tyler v. Nelson, 14 Gratt. 215, 221, and *foot-note*; Tunstall v. Withers. 86 Va. 895, 11 S. E. Rep. 565; Hudson v. Burwell, 1 Va. Dec. 366 ; Wooddell v. Bruffy, 25 W. Va. 468, all citing the principal case as authority on this s ub j ect. See also, monographic *note*on "Executors and Administrators” appended to Rosser v. Depriest. 5 Gratt. 6.

†

Chancery Practice — Decree against Sureties —When Made. — Where a creditor, instead of proceeding at law against the sureties of his debtor, Institutes his suit in equity, against them and their principal, he is bound to submit to the rule of equity, which will first decree against the principal, and subject the sureties only in the event of that decree being unavailable, provided that this can be done without any material delayer injury to the creditor. But no measure subjecting the creditor to material injury or delay should be required as preliminary to a decree against the sureties. This doctrine, recognized in the principal case, and exemplified in the second headnote above, has been approved by several subsequent cases. See Moore v. George, 10 Leigh 243, 248 ; Aylett v. King, 11 Leigh 493, 494, 495 ; Lacy v. Stamper, 27 Gratt. 55, 56, 57; Southall v. Farish, 85 Va. 409, 7 S. E. Rep. 534, all citing principal case.

In Lacy v. Stamper, 27 Gratt. 56, it is said : “The case of Aylett’s ex’or v. King &c.. 11 Leigh 486, is not in conflict with the case of *Dabney's Adm'or Sc. v. Smith's*Legatees, and certainly was not intended so to be. In Aylett's Ex’or v. King &c.. Judge Allen distinguishes that case from *Dubney's Adm'or Sc. v. Smith's Legatees,*the correctness of which he does not question; and Tuoker, P., reaffirms much of what was said by him in that case, and says that upon a review of the case he thinks it was properly decided ; and he then proceeds to distinguish the two cases, and concurs in the decision which was made in Aylett’s ex'or v. King &c. Roberts v. Colvin, 3 Gratt. 358, was certainly not intended, and cannot have the effect of overruling *Dubney's Adm'or &c. v. Smith's Legatees.*It takes no notice of that case, is very brief, and was intended no doubt to rest on its own peculiar circumstances.”

TUCKER, P.

Various objections have been made to the decree in this case, none of which appear to me to be substantial.

It has been decided by this court, that a party injured majT, under particular circumstances, pursue his remedy in equity against the executor and his sureties, without a previous suit to establish a devastavit. It is not pretended, that the remedy has not been properly resorted to in this case; but it is contended, that as the plaintiff comes into equity, instead of suing upon the bond at law, he is bound to submit to the rule of equity, which will first decree against the principal, and subject the sureties only in the event of that decree being unavailing. Such, I take it, is without question the practice of the court where such a measure can be adopted, “without any material delay or injury to the creditor;” 2 Rand. 400. And if Buller Claiborne and Isham Dabney had been alive at the date of the decree, it ought to have been entered against them, in the first instance. However, they being dead, it was entered very properly against their estate in the hands of their personal representatives; and on this decree a fieri facias has been returned nulla bona testatoris. But, it is contended, that the plaintiffs, should then have proceeded to have the accounts of the administrators of Claiborne and Dabney settled, in order to a decree against them personally, if a devastavit should be established. I think not. This would indeed be to impose too onerous terms on the creditor. He ought not to be delayed *in his recovery, until he has pursued the personal representatives of the principal to the utmost limit of litigation. The surety must be content with his right of subrogation, and take upon himself that pursuit, as the consequence of his having become sponsor for the principal.

Eor a like reason, I do not think there was any obligation in the creditor to pursue the heirs of Buller Claiborne. Indeed, in this case, it might well admit of question, whether if the Ohio land be not sold, the courts in Virginia could charge it; or, if it be sold, whether by the law of Ohio, the heir is chargeable by reason of the descent of the land. These are interesting questions, but not necessary to be settled in this case, unless the sureties asserting their right of subrogation, should directly present it.

As to the objection that this decree is rendered against two only of four sureties, the answers are plain: that as to Isham Dabney, this decree was not rendered against him, because the former decree had been already so rendered, and found unavailing: and that as to Pegram, enough appears in the record, to shew that he was hopelessly insolvent, and no attempt was made by the appellants, at the last hearing, to prove the contrary. As to the proceeding by notice, this is expressly sustained by Jones v. Hobson, 2 Rand. 487, on the authority of the case of Sheppard v. Starke, 3 Munf. 29.

It remains put to add, that I think the sheriff’s sureties are responsible under his official bond, for his devastavit of the estate committed to him, and that Dryden’s case is not to be considered as an authority to the contrary. The reasoning of the court in that case, it is believed, will not be found applicable to this. It was contended, indeed, that the sureties are not liable for any waste committed after the expiration of the term, for which Claiborne was commissioned. I cannot think so. The estate was committed to him within that term. The statute made no provision for transferring the administration to a succeeding sheriff, and the sheriff to whom the estate is once committed, must therefore proceed with the administration, until it is complete. If the trust is *reposed within the period within which the sureties are bound, they are responsible, whenever there is a breach of that continuing trust, whether before or after the expiration of that term; in like manner as sureties are responsible for non-payment of money made by sale under execu*18tion, though made after the expiration of the sheriff’s term, the levy having been made before its expiration.

CAB33LL and CARR, J., concurred.

Decree affirmed.