#### Golder, County Judge, etc., vs. Littlejohn.

*Administrator*de bonis *non*— Bight *of action.*

An administrator *do donis non*may bring an action, in tbe name of tbe county judge, on tbe executor’s or administrator’s bond required by chapter 104, B. S. *Btronach r. Bt/ronach,*20 Wis. 129, distinguished.

*252APPEAL from tbe Circuit Court for *"Walworth*County.

The executors of the estate of William Potts (whose will was admitted to probate in said county) having deceased, and an administrator *de bonis non*having been appointed, he brought this action, in the name of the county judge, and by his permission (R. S. ch. 104, §§ 4-7), against *Littlejohn*as one of the sureties on the executors’ bond, for alleged breaches of the conditions thereof, in that the executors did not make a true and perfect inventory, did not administer the estate according to law and the will, and did not render an account of their administration as required by law and the order of the county judge. Defendant demurred to the complaint on the grounds: 1. That the court had no jurisdiction of the Subject-matter. 2. Defect of parties plaintiff. 3. Misjoinder of causes of action. 4. Defect of parties defendant, the other surety not having been made a party. 5. Insufficiency of facts to constitute cause of action. 6. No legal capacity in plaintiff to bring the action. From an order sustaining the demurrer, plaintiff appealed.

*Murphey <& Orrnath,*for the appellant,

stated that the demurrer was sustained on the ground that the county judge could not authorize suit to be brought by the administrator *de bonis non ;*and to the point that this was error, they relied on chapter 104, R. S., especially sections 4, 5, 6, 12, also sections 8 and 12, chapter 102; and to the point, that the administrator *de bonis non*is a party “ interested in the estate,” and “ aggrieved ” by a breach of the bond, they cited *Leland v.*Felton, 1 Allen, 531; *Wiggins v. Swett,*6 Met. 197; *Bryant v. Allen,*6 N. H. 116. The first executor or administrator must account to the administrator *de bonis non. Gobb v.*Muzzey, 13 Gray, 57. And the latter may sue on the administration bond of his predecessor. 1 Hagg. 139 ; 9 Watts, 252-56, 479, 495 ; 1 Pars. 70; 7 Blaekf. 529 ; 3 Eng. 172 ; 8 Ired. 381, 397; 11 id. 110,160 ; 12 id. 64; 1 Sandf. (S. C.) 228 ; 6 East, 410-12; 1 Taunt. 322; 6 id. 453; 3 E. & A. 362-64; 5 Price, 412.

*253*Page da*Montague, for tbe respondent.

[No brief.]

DrxoN, C. J.

In tbis case we have not been favored with any brief or argument by counsel for tbe defendant, and are therefore not possessed of tbeir views. ¥e bave examined the case upon tbe brief and authorities of plaintiff’s counsel, and are satisfied that tbe court below erred in sustaining tbe demurrer. Tbe provisions of tbe statute in regard to tbe prosecution of probate bonds are full and explicit; and, as counsel say, no further authority is required to show that tbis action is instituted in conformity to law, than is found in sections 6, 7 and 12, chap. 104, R. S. Section 6 provides, that in all actions upon such bond's the summons and proceedings shall be in tbe name of tbe judge of tbe county court; section 7, that, on tbe application of any person authorized by tbe chapter to commence an action on such bond, tbe. judge of tbe county court may grant permission to such person to prosecute tbe same, which permission tbe complaint in tbis case alleges was granted. Section 12 authorizes claims for damages on account of tbe breach of tbe conditions of any bond, to be prosecuted by any executor, administrator or guardian in behalf of those be may represent. These provisions, when considered in connection with others to be found in tbe same chapter, seem to us very clearly to authorize tbe maintenance of tbis action. Tbe Case of *Stronaeh v. Stronaeh,*20 Wis. 129, on tbe authority of which it is said that tbe court below sustained tbe demurrer, on tbe ground that tbe plaintiff has not legal capacity to sue, presented quite a different question. Tbe question there was, whether an administrator *de bonis non*could avoid a wrongful sale or pledge of the property of tbe estate by tbe first administrator; and tbe court held, as there was no statute authorizing tbe administrator *de bonis non*to do so, that tbe action for such *devastavit*was properly brought in tbe name of tbe heirs of tbe intestate. It needs no argument to show that tbe doctrine there held is wholly *254inapplicable to a proceeding like this, which is a snit upon the bond, expressly authorized by statute, to compel the executors to pay over and account for the *value*of the property received by them, and not an action to reach the property itself wrongfully sold, pledged or converted by the executors.

Note. — On a motion for a rehearing, the respondent’s counsel argued, among other things, that the surety could not he made liable on the bond until the county court had made the proper judgment, showing that his principals were in default. 2 Redfield on Wills, 83. At law, it is for the principals to contest the facts alleged as constituting breaches of the bond; it is for the surety to contest only the question of payment. 3 Ohio, 225; 4 Munford, 98 ; *Ohio v.*Mowatt, 2 Edw. Ch. *57; Jones v. Anderson,*4 McCord, 113; *Stewart v. Treasurer, etc.,*4 Ham. 98; *Gordon v. Justices, etc.,*1 Munf. 1; *Inglehart v. Stake,*2 Gill *&*J. 235; *Correy v. Williams,*9 Mass. 114; 2 Redf. on Wills, 248, and cases there cited. 2. The administrator *de bonis non*is not authorized “to do anything except to administer on the estate or assets remaining undisposed of by the first administrator.” *Stronach v. Stronach,*20 Wis. 229. An executor’s bond is not “ estate or assets ” *(Rusk v. Van Nostrand,*21 Wis. 160), but a mere contract of indemnity.

The motion was denied. — Rep.

Of the other points of the demurrer we take no notice, except to say that we see nothing in them for which the demurrer ought to have been sustained.

*By the Court.*— Order reversed.