#### *Wm. A. Owens et al.*v. *N. G. W. Walker et al.*

Columbia

Nov. 1848

*St*was the duty of the Ordinary, under the Act of 1789, to grant only such relief to a petitioning surety of an administrator, as would not impair or affect the ■rights of the parties interested in the estate.

The proper manner for the Ordinary to give relief to a petitioning surety, is to taire a new bond with additional sureties, or to revoke the administration.

A guardian, or other person standing in place of a guardian, may furnish a minor, from the income of his estate, such articles as are proper for his condition in life. And there is no such inflexible rule as that a riding horse may not be regarded as necessary for a minor.

■On a settlement with the Ordinary by an executor or administrator, it ought to appear on the face of the settlement what was the nature of the evidence on which the return was accepted and allowed-; -and although the evidence with the Ordinary is not *per se*conclusive in favour of the executor or administrator, it ought to be received for as much as it is worth; and the value must depend on a variety of circumstances ; the regularity of the accounts, the death of -witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration. Yide 2 McC. C. R. 197.

*290*Before*Dargan, Ch. *at Barnwell.'February Sittings,*1848.

Dargan, Ch. On the 12th December, 1830, John A. Owens, of Beaufort district, departed this life, leaving unre-voked his last will and testament, and leaving as executor and executrix to his last will, his father, William A. Owens, and his widow, Mary W. Owens, and leaving also three children, William A., Edwin W. and Sarah E. Owens, now the wife of the complainant, John E. Tobin. The executrix qualified on the will, and assumed the management of the estate. In August, 1834, she intermarried with the complainant, J. J. Fogler, who thereafter acted as executor in right of his wife. On the 21st March, 1836, Mrs. Fogler died, and on the 12th April following administration with the will annexed, was granted to James G. Owens by the Ordinary of Beaufort district, with Robert Goode, Seth Daniel and J. B. Ellis as sureties. The administrator inventoried the estate, and in May or June, by leave of the Ordinary, sold a considerable portion of the perishable property, of which he never made any return. He sold the crops of cotton and a considerable quantity of other produce, which he has in part returned. In July, 1837, Robert Goode petitioned the Ordinary for relief, in accordance with the provisions of the Act of 1789. Some action was had in the matter, but nothing definite was done until April, 1838, when the Ordinary, upon the second application of Goode, issued his citation to the administrator to appear and give further surety, that Robert Goode may be released. In obedience to this citation, on the 4th May, the administrator appeared with W. B- Bowers, and Bowers signed and sealed the original bond as the substitute of Goode. The Ordinary making on the face of the bond the following decree, “Robert Goode released from any re» sponsibility after this 4th May, 1838, W. B. Bowers having been substituted in his place.” “M. J. Buckner, Ordinary B. D.”

On the 23d May, 1839, the administration of J. G. Owens was revoked, and letters of administration granted to one Michael Brown. In 1840 Robert Goode, the surety, died, and administration of his estate was committed to his widow Martha E. Goode, and Mack Goode. In the same year the testator’s son, Edwin W., died an infant and unmarried. In May, 1842, the administrator Owens, died insolvent; administration of his estate was granted to N: G. W. Walker in 1846. W. B. Bowers, in January, 1843, gave his note to the complainant, W. A. Owens, for five hundred dollars, who thereupon gave him the subjoined receipt, “Received, January, 1843, from Wm. B. Bowers his note for five hundred dollars, in consideration of which I do hereby agree and bind myself to indemnify him and save him harmless against his liability as *291one of the sureties to the bond of James G. Owen's, as administrator of the estate of John A. Owens.—

Witness my hand and seal.

W. A. Owens, [l. s.]

Witness, B. P. Brown.

The bill was filed in October, 1846, with W. A. Owens,. Tobin and wife, and Fogler, as complainants, against the representatives of Owens, Goode, Daniel, Ellis and Bowers.

The defendant Walker, by his answer, states he is ignorant of all the matters stated in the bill of the complainants ; that his intestate died utterly insolvent, and that he has never-received one dollar of assets. The defendant Daniel, admits the execution of the bond by the administrator Owens, with Goode, himself and Ellis as sureties, but is ignorant of the “actings and doings,” of the administrator, and asserts that he was neither apprised, nor did he consent, to the substitution of Bowers for Goode, nor does he believe that his co-defendant Ellis did, and claims if Goode be released that he may be also. Mack Goode by his answer, admits the execution of the bond, but claims that his intestate was released after a certain date by the Ordinary. W. B. Bowers pleads in bar that he is not liable, because the Ordinary did not revoke the letters of administration and re-grant them with new security, nor did he cause the said W. B. Bowers to enter into a new bond without revocation, but that he caused him to sign and seal the old bond as substitute for Goode, and that as the Ordinary had no power to dischage Goode, he, Bowers, is not liable. Bill *pro confesso*as to others.

It appears by the Commissioner’s report that the amount due by the administrator, Owens, on the 4th May, 1848, is $>5,471 81. A statement annexed to the Commissioner’s report will show the amounts respectively due the complainants in various aspects. The representatives of Robert Goode except substantially to the Commissioner’s report. 1st. Because he has not credited the administrator with the price paid by him for a horse for W. A. Owens, one of the complainants, while an infant. 2d. Because the Commissioner has decided that W. B. Bowers is not liable on the administration bond of James G. Owens, and that Robert Goode is not released. 3d. Because the Commissioner has not allowed the administrator Owens, the sum of $270 06 contained in his returns to the Ordinary. 4th. Because if Robert Goode or his representatives are liable after 4th May, 1838, W. B. Bowers is jointly liable with them, and they are entitled to avail themselves of all the consequences, equitable and legal, resulting from the transactions between one of the complainants and Bowers.

The defendant W. B. Bowers excepts to the Commission*292er’s report, because the Commissioner, although deciding that be js not pab|e at au; yet credits the administrator, Owens, with fire hundred dollars which he paid in January, 1843, t0 A. Owens.

5 Stat ill sec.’ 24. ’

jk 43, sec.

Hill v. Calvert 1 Rich. Eq 55.

The complainant, W. A. Owen's, excepts to the report, because the Commissioner has credited the administrator Owens and debited the said W. A. Owens with the sum of $500, paid in 1843, by Wm. B. Bowers, and the Commissioner having decided that the said W. B. Bowers is not liable at al'I on this supposed bond, it is contrary to equity that either the administrator or the first sureties should be benefited by a payment made by one who is neither a surety, nor co-surety, norm any manner liable.

The •^•ct 1^89, under which the surety petitioned for relief, contains the following provision, “That if the securities for administrators conceive themselves in danger of being, injured by such surety-ship, they may petition the Court to> whom they stand bound, *for relief\*which Court shall summon the administrator to appear, and thereupon make such order or decree as shall be sufficient to give relief to the petitioner.”'

The Act of1839, on the same subject, contains the following provision, “It shall be the duty of the Ordinary, in whose office an administration bond is lodged, upon a petition filed by any of the sureties of the same, who conceive themselves in a condition to- be injured by such surety-ship, to summon the administrator before him, and make such order or decree for the relief of the petitioner *as may not impair or affect the rights of the- parties interested in the estateP*

I apprehend that a correct interpretation of the Act of 1789' would- impose upon the power of the Ordinary the same restrictions that are by express terms annexed to its exercise-by the Act of 1839, to wit r that he shall grant relief to the petitioning surety in such a manner as not *to*impair or affect the rights of the parties interested in the estate. And consequently an order or decree of the Ordinary necessarily having this- result, would transcend his jurisdiction, and would be null and void. He is not the party interested beneficially in the administration bond, but has simply, by virtue of his official character, the legal custody of the instrument, and can do no- act to discharge the liabilities of the-obligors, or to prejudice the rights of the parties interested, but in the exercise of the legitimate authority conferred on him by law. The erasure of the name of one of the obligors from the face of the bond, from wantonness or corruption, would- not extinguish the liability of such obligor, or in any manner impair the rights of the distributees secured by the bond. It would be extrajudicial and beyond the scope of his authority.

*2932 McC L R 291. ’

2 Hill L. R, 21g.

I will now direct my attention to the legal effect of the substitution of Bowers in the place of Goode on the administration bond. I mean its legal effect, on the supposition that' the act was legitimate, and had the operation intended, of discharging Goode from all future liability. Upon the plainest principles of law, can it be doubted for a moment that if Goode is discharged, Ellis and Daniel are also discharged ? There is no proof that they assented to the substitution; in other words, to the alteration of the contract. By the exoneration of one, and the substitution of another obligor, and that without their assent, it ceases to be the contract to which they became parties, or by which they bound themselves. The obligee has made a new contract, and by discharging one, he discharges the whole of the joint obligors who have not assented to the alteration. It might very well be that Ellis and Daniel would be willing to become bound as the sureties of Owens, the administrator, in association with Goode, and not with Bowers; at least they have the right to say so, even if Bowers were a wealthier man than Goode. They are not bound further than they are bound by the bond, which is jointly and severally with Goode and not with Bowers. In *Eaves*v. *Pickett, Oates*& *Giffith,*it was held that even in the case of a parol contract, the signature of a party after the others had signed, and without their knowledge or consent, did not make him a joint contractor.

The effect, then, of the discharge of Goode would be the discharge of Ellis and Daniel, who did not petition, or so far as appears, desire relief; an effect not contemplated by the Ordinary, and which would operate very prejudicially to the distri-butees of the estate. It would leave the estate still in the hands of the administrator, with very inadequate security, with one surety in the place of three, even'if Bowers was bound at all. In my opinion he was not. This would be affording relief to the petitioning surety, not in accordance with what I regard as the proper interpretation of the Act of 1789, viz: That it must be afforded in such a manner as “not to impair or affect the rights of the parties interested in the estate.” My opinion is that Goode had no right to withdraw from his position of joint responsibility with his co-sureties, in that bond, without their assent. And the Ordinary having no right to give relief in that form, the release of Goode is a nullity. The proper manner for the Ordinary to give relief to a petitioning surety is to take a new bond with additional sureties, or to revoke the administration. And I cannot conceive any other mode in which he can relieve a surety apprehensive of danger, and at the same time have a due regard to the interest of the estate. In the *Ordinary*v. *Bigham <$y Hudson,*it is said, *“*the Ordinary may make such order as will give relief to the petitioner; he may revoke the letters of administration and grant *294administration *de bonis non,*or he may decree that the administrator shall substitute a new surety and a new bond,” &c. jn *Qraml>iing*v. *Woodward,*it is said that “ the only way an Ordinary can make an additional security to an administration bond, liable, is to take a new bond,” &c, and “ that one signing an original bond who was not originally a party, would have no effect.” Bowers is therefore not bound. On this point see also *Hill*v. *Calvert,*already quoted. The consideration on which Bowers agreed to become bound, to wit: the release of Goode, having failed, it would be unreasonable that he should be held liable. The judgment of the Court is, that for the devastavits of James G. Owens as the administrator of John A. Owens, his original sureties, and, the representatives of those who are dead, are liable, and that they pay to the complainants the amount that may be found due by the said administrator.

William B. Bowers, the substituted surety, apprehensive that he might be held liable as surety of James G. Owens, has paid the sum of five hundred dollars to William A. Owens, in consideration of his being saved harmless from that supposed liability, which the said William A. Owens has by his written obligation undertaken to do. This sum the Commissioner, in adjusting the accounts, has passed to the credit of the securities who are liable, and has also debited said William Owens, who is one of the distributees, with the amount thus received, as a part of his share of the estate. From the view I have taken of the case Bowers has no connection with the estate as surety. If he is not liable as such, the sum thus paid should not go to the relief of those who are. It was paid to William A. Owens as a premium for‘assuming the responsibility of Bowers to the estate. It was a transaction between them which seems to have been fair, and William Owens, in consideration of the risks which he assumed upon himself, involved in the issue of rather a nice legal question, received the five hundred dollars, and is justly entitled to-it. The exception to this part of the report of the Commissioner is sustained. AIL the other exceptions are overruled. And the Commissioner is directed- to re-adjust the accounts and amend the report in conformity with this decree.

The defendants, Mack and M. G. Goode, administrators of Robert Goode, appealed.

1. Because, by the decree of the Ordinary, Robert Goode, as one of the sureties of James G. Owens, was released or discharged, and W. B. Bowers, becoming voluntarily a party to the bond, was substituted in his place, there being no evidence that Ellis and Daniel did not assent to such substitution, and the presumption, in the absence of evidence to the contrary, is, that the Ordinary acted legally in the premises.

2. If Robert Goode was not released or discharged by the *295decree of the Ordinary, yet W. B. Bowers, by voluntarily be-cominga party to the administration bond, became severally( bound with the original obligors.

c R ^ '

3. If W. B. Bowers did become severally bound with the original sureties, as it is respectfully submitted he did,, the latter are entitled to all the advantages resulting to Bowers from the release and guaranty given to him by one of the complainants.

4. Admitting that Bowers is not legally or equitably bound, yet the $500 which he paid to one of the complainants, were paid by, and received from, him, “ as one of the sureties to the bond of James G. Owens as administrator of John A. Owens,” and therefore the sureties are entitled to credit for the same.

5. Because the 3d exception taken by these defendants to the Commissioner’s report, viz: that the Commissioner has not allowed the administrator, Owens, credit for the sum of $270 06 included in his returns to the Ordinary and duly vouched, ought to be allowed, inasmuch as there is positive evidence of the destruction of the administrator’s papers, in addition to the lapse of time, and the death of parties.

6. Because the 1st exception taken by these defendants to the Commissioner’s report, viz: that he should have credited the administrator with the price paid by him for a horse for W. A. Owens, one of the complainants, while an infant, should have been sustained.

Patterson, for the motion.

Bellinger and Hutson, contra.

Dunkin, Ch.

delivered the opinion of the Court.

The view taken by the Chancellor in relation to the liabilities of Robert Goode and William B. Bowers, seems to the Court well sustained by the authorities, and the four grounds of appeal from this part of the decree are therefore overruled.

The subject matter of the fifth ground of appeal must be referred for further inquiry. “ The settlement before the Ordinary,” as remarked by the Court in *Wright*v. Wright, intended as a security for the executor, as well as for the dis-tributees.” The vouchers should be exhibited to the Ordinary, before the account is passed, but they are retained by the executor. “ It ought to appear on the face of the settlement what was the nature of the evidence on which the return was accepted and allowed ; and although the evidence with the Ordinary is not conclusive, per *se,*in favor of the executor, it ought to be received foi as much as it is worth; and the value must depend on a variety of circumstances; the regularity of the accounts, the death of witnesses, loss of vouchers, and the lapse of time, must all be taken into consideration.” In that case, sixteen years had elapsed since the account was passed, and it was held to be a complete protec* *296tion, unless the other party could show error or fraud in the transaction, and that the burden of proof was on them. The evidence before us does not enable the Court to determine what are the items of the account which were rejected by the Commissioner, nor at what time the charges were made, or the account passed. The Commissioner will report upon the subjeot in reference to the principles herein indicated.

SN&MeC. R. 524.

And so in relation to the sixth ground of appeal. The Court is notin possession of such evidence as will warrant a final decree. There is no such inflexible rule as that a riding horse may not be regarded as necessary fora minor. *Pri-ma*facie, perhaps, only boarding and lodging, clothing and education, of some sort, fall strictly within the description of necessaries. In *Rainwater*v. *Durham,*it was held by a divided Court, that an action could not be maintained against an infant for the price of a horse sold to him. His contracts generally were not binding, and this did not fall within the exception of necessaries furnished. *“*The object of the law,” says the Court, “is to guard the infant against his supposed indiscretion.” But it never has been doubted that a guardian, or other person standing in the place of a guardian, may furnish a minor, from the income of his estate, such articles as are proper for his condition m life. There is no necessity in sueh case that *“*the supposed indiscretion of the infant” should be under the protection of the law. The articles are supplied at the discretion of the guardian and subject to the supervision and correction of the Court in passing his accounts. The ground of appeal is that the defendant should have been allowed the sum which he paid for a horse purchased for the minor. We think the Commissioner should have received testimony as to the fortune and condition in life of the minor, or any other circumstances shewing the propriety of the charge, and that the result should depend on the effect of such testimony.

It is ordered and decreed that the deeree of the Circuit Court be modified according to the principles herein stated.

Johnston, Ch. Caldwell, Ch. and Dargan, Ch. con-icurred.

*Decree modified.*