#### *Hasford Walker & Wife et al.*vs. *David Crosland, Holden W. Liles, Philip E. Crosland et al.*

The condition of a bond, taken by an Ordinary from an administrator, with the will annexed, was in the form prescribed for cases of intestacy, by the 21st section of the Act of 1789, except that there was no clause for surrendering {h.?,administration in ease a will should afterwards appear, and be proved by the executor — it contained no reference to the will, and omitted the clause requiring the administrator “to pay and deliver all the legacies'’ &c., as prescribed for cases of administrations, with the will annexed, by the 20ih section of the same Act: *held*that the bond was not good as a statutory bond, and that it could not be enforced against the administrator and his sureties by a legatee.

The validity of such a bond, at the common law, can properly be determined only in a suit in the Court of Law, in the name of the Ordinary.

*Before*Dunkin, Ch., *at Marlborough, February,*1850.

The Chancellor. The principal facts of this case are fully and correctly stated in *Allen*vs. *Crosland,*(2 Rich. Eq. 68.) This bill seeks to establish and enforce the liability of the defendants, Holden W. Liles and Philip E. Crosland, as sureties on the administration bond of David Crosland.

The defence rests on grounds, which will be separately considered. First, the defendants insist they are not liable, because the bond is no.t in the form prescribed by law. It appears, among other facts, that Matthew Allen died in Georgetown district in 1834, leaving a widow and one child, (now the complainant, Mary Ann Elizabeth Walker.) Some years after-wards, David Crosland married the widow, and, in January, 1839, he was appointed, by the Court of Equity for Georgetown *24district, guardian of the child, giving bond with sureties in the penal sum of sixteen thousand dollars. Both he and his sureties were residents of Marlborough district. In the latter part of March, 1839, the bond, which is the foundation of these proceedings, was brought or sent up to Marlborough, where all the obligors resided, for the purpose of being executed. The bond bears date 22d March, 1839, and is made payable, in the penal sum of six thousand dollars, to E. Waterman, Ordinary of Georgetown district, and his successors, &c. The condition is that “ David Crosland, administrator of the goods, chattels and credits of Matthew Allen, deceased,” shall make an inventory, &c., and exhibit the same in the Court of Ordinary, “ and such goods, chattels and credits shall well and truly administer, according to law,” and “ make a just and true account of his act-ings and doings therein, when required by the said Court; and all the rest of the said goods, chattels and credits which shall be found remaining upon the account of the said administration, the same being first allowed by the said Court, shall deliver and pay to such persons respectively as are entitled to the same by law.” At the time when the bond was presented to the defendants for execution, (as was proved by C. W. Dudley, the subscribing witness,) the following indorsements appeared upon the bond, viz: “I have understood that Mr. Crosland has already given bond to the Commissioner in Equity for all that part of the estate of Matthew Allen which he did not inherit by intermarriage with the widow; and if so, the above bond is one of mere matter of form.” — (Signed) “E. Waterman, Ordinary, G. D.” “I hold Mr. Crosland’s bond for sixteen thousand dollars, as guardian of Mary Allen.” — (Signed) *“*J. W. Coachman, Commissioner in Equity.” After the execution of the bond, the Ordinary of Marlborough district, on 2d April, 1839, gave an official certificate, under his hand and seal, as to the sufficiency of the sureties, and it was thereupon returned to the Ordinary of Georgetown district.

The Act of 1789 prescribes two forms of bond. The 20th section provides that an administrator, *with the will*annexed, shall enter into bond, with security in a sum equal to the value of the *25estate at least, with condition “that C. D., administrator, with the will annexed,” shall make an inventory, &c., &c., “and further do well and truly pay and deliver all the legacies contained and specified in the said will, as far as the said goods, chattels and credits will extend, and the law require.”

The 21st section prescribes the form of the bond to be given by an administrator. It is not necessary to transcribe this form, as it is precisely that of the bond executed by the defendants, except that there is no clause for surrendering the administration in case a will should afterwards appear and be proved by the executors. The 15th section provides that, in the event of the death of an executor or administrator, intestate, without having fully administered, administration shall be granted of the goods, <fcc. left unadministered by the former executor or administrator.

David Crosland was appointed administrator, with the will annexed, of Matthew Allen, deceased, so far as his goods and chattels had been left un ad ministered, by Thomas McConnell, deceased, the executor of Matthew Allen, deceased. The alleged default is, in not paying over to the complainant the legacies to which she was entitled under her father’s will. The defendants insist that this is a liability not contemplated or provided for in the instrument executed by them.

Without doubt, the leading object of the Legislature, in prescribing a form of bond, is to protect the rights of persons interested in the estate. But it is a very important, though -perhaps subordinate purpose, that parties may distinctly understand the obligations into which they enter. Every one is presumed to know the law, and he is bound, at his peril, to inquire into the facts to Avhich such law is applicable. The bond to be given by an administrator, with the will annexed, demands that he should pay and deliver over the legacies contained and specified in the will of the testator, so far as his chattels will extend. To this his sureties are also bound. If they do not inquire into the provisions of the will, or the extent of the testator’s estate, they must submit to the consequences of their engagement. The recital as well as the condition of their bond had admonished them *26that a will existed, and this was the rule of conduct for their principal.

Where a party dies intestate, the law prescribes the form of bond to be, given by the administrator in such case; and the law also provides the distribution to be made of his estate. The sureties to his bond undertake that their principal shall administer the estate, pass his account with the Ordinary, “and the rest of the goods, &c., which shall be found remaining upon the account of said administration, shall deliver and pay to such persons respectively as are entitled to the same by law.” This being the form of bond prescribed by the statute to be taken in cases of intestacy, the sureties have only to inquire to whom the estate passes after the debts are paid. They undertake that their principal shall make distribution according to the provision's of the Act of,.1791.-...This..they know to be the measure of their responsibility. If the widow be the only person entitled, and she be also the administratrix, then it may well be supposed by the sureties that, the debts being paid, their bond, in the language of the Ordinary of Georgetown, was “ a mere matter of form.’’ But it is no part of the condition of their bond that their principal should pay and deliver the legacies contained in the will of Matthew Allen. That would be to vary materially the responsibility they assumed, and would have occasioned a very different inquiry before they entered into the obligation.

The bond to be given by an administrator, with the will annexed, is expressly prescribed* l^y law. It has long since been held that a bond, taken differently from that prescribed by statute, is void. (1 Saund. Rep. 161, note.) The subject was considered by the Court of Appeals of Virginia, in *Frazier*vs. *Frazier,*(2 Leigh, 642.) That was a bond taken from an administrator, *with the will annexed,*but not in the form prescribed for such official bond, but nearly in the form prescribed for an administrator’s bond. It was held that this was not a good statutory bond, and that no suit, either in law or in Equity, could be maintained against the surety for the benefit or at the relation of a legatee. Nor does this decision seem at variance with *Peoples**27vs. *Peoples,*(4 Dev. & Bat. 9.) That, too, was a bond taken from an administrator, with the will annexed, and it was held good. But there is no statute of North Carolina which prescribes the form of bond to be given by an 'administrator with the will annexed. Besides, as intimated by Judge Gaston, there could be no misapprehension as to the purposes of the instrument, for “the condition of the bond stated, as facts, that the last will and testament of Harbert Peoples had been duly proved in the county court of Guilford ; that the executors therein named had refused the office; and that, upon such refusal, administration with the said will annexed had been committed to the two first named obligors, Sally Peoples and Reuben Folger.” But in the case under consideration the bond is in the form prescribed for an administrator of the estate of an intestate, and not in the form prescribed for the administrator of one who had left a will. The parties were aided by no recital or description in the bond which would awaken a suspicion that Matthew Allen had not died intestate. The defendants live a hundred miles off. But. in order to give full information, and at the same time quiet all apprehension, the officer to whom the bond was to be given annexes an official certificate that this instrument was a mere matter of form, as the principal in the bond had inherited, by marriage, one-third of the estate, and was entitled to the other two-thirds, as guardian of the minor; precisely the legal consequences which would have existed had Matthew Allen died intestate.

Being of opinion that the bond recited in the pleadings was not taken in conformity with the provisions of the statute in such case, and that the defendants are not liable, under their obligation, for the alleged default, the Court deems it unnecessary to discuss the grounds as to misrepresentation and mistake; both which grounds were very fully argued at the hearing.

It is ordered and decreed that the bill be dismissed, but without costs.

From this decree the complainants appealed, and moved to reverse the same, for the causes following, to wit:

First. Because his Honor, in his said decree, has adjudged that *28the bond made by the defendants, David Crosland, Holden W. Liles, and Philip E. Crosland, to secure the due administration by the said David Crosland of the unadministered estate of Matthew Allen, “ was not taken in conformity with the provisions of the statute in such casewhereas, it is respectfully submitted, the said bond does not *materially*vary, in its form, from the direction of the Act of Assembly of 1789, and is a good and sufficient statutory bond.

Second. Because his Honor, in his said decree, has adjudged that the said bond, “not being taken in conformity with the provisions of the statute in such case,” is therefore void, and “ the defendants are not liable under their obligation for the default” of the administrator, alleged in the bill: whereas, it is respectfully submitted, that the said bond, though it be held not to be a good statutory bond, is not *therefore*void, but constitutes a valid and legal obligation on the part of the defendants, in their fulfilment of which the'complainanls have such an interest as the Court will protect and enforce.

*Inglis,*Dargan, for complainants.

*Dudley*& Johnson, Thornwell, *Hanna,*for defendants.

Wardlaw, Oh.,

delivered the opinion of the Court.

Upon the death of Thomas McConnell, the acting executor of the will of Matthew Allen, David Crosland, who had married the widow of testator, become administrator, with the will annexed, of the estate of said Allen, unadministered by said McConnell, and entered into a bond to the Ordinary of Georgetown district, with Holden "W". Liles and Philip E. Cros-land as his sureties; and the validity of this bond, as a foundation of a suit by legatees, is now in controversy.

Anciently, the ordinary was entitled to apply the residue of intestates’s estates, after the payment of debts, to whatever purpose his conscience might approve. To correct the flagrant abuses occasioned by this power, the statute 31 Edw. Ill, st. 1, c. 11, provided that, “ in case where a man dieth intestate, the ordinaries shall depute of the next and most lawful friends of *29the dead person intestate, to administer bis goods,” &c. (1 "Wms. Ex’ors. 263.) These administrators, until bonds were required by statute, were entitled to enjoy exclusively the residue of the intestate’s effects, after the -payment of the debts and funeral expenses ; and where the ordinaries attempted to enforce distribution, by taking bonds from the administrators for that purpose, such bonds were prohibited by the temporal courts, and declared to be void in point of law,, on the ground that, by - the grant of administration, the ecclesiastical authority was executed, and ought to interfere no further. (2 Wms. Ex’ors. 1056.) To remedy this mischief, was passed the English statute of distributions, 22 and 23 Car. II. c. 10, which establishes the order of distribution, and empowered the ordinary to take bond from an administrator, with two or more sureties, the form of the condition of which was prescribed, *mutaiis mutandis.*(2 Wms. Ex’ors. 1057.) Our Act of 1789, (5 Stat. 106,) pursuing the same policy, in section 21, prescribes the form of the condition of the bond to be given by a common administrator, and, in section 20, the form of the condition of the bond to be given by an administrator with the will annexed ; and, further provides, that if the ordinary fail to take bond as aforesaid, he shall be liable to be sued, for all damages arising from such neglect, by any person interested in the estate. It thus appears that this whole matter, as to distribution and bonds, is of statutory regulation.

The condition of the bond now in question does not conform to the prescriptions of our Act of 1789, neither as to a common administrator, nor as to an administrator with the will annexed. It omits the clause required in the former case, “ and if it shall hereafter appear that any last will and testament was made by the said deceased, and the same be proved in court, and the executors obtain a certificate of the probate thereof, and the said administrator do in such case, if required, render and deliver up the said letters of administration and it omits all reference to the will of the deceased, and the clause required in the latter *case,*— “ and, further, do well and truly pay and deliver all the legacies contained and specified in the said will, as far as the *30said goods, chattels and credits will extend and the law require.”

The Courts in this State have decided, in many cases, that bonds taken in pursuance of statutes directing their substantial provisions, and not expressly declaring void bonds taken in other form, are good, if the provisions of the statutes be complied with in substance, — if the bonds be not unlawful in themselves, and if the obligors be not subjected to disadvantage beyond the requirements of the statutes; — as in sheriffs’s bonds before our Act of 1829, prescribing the forms of bonds to be given by public officers, replevin bonds, attachment bonds, injunction bonds, &c. *Treasurers*vs. *Stevens,*2 McC. 107; *Treasurers*vs. *Bates,*2 Bail. 362; *Lee*vs. *Waring,*3 Des. 57; *Kilgore*vs. *Rabb,*1 N. & McC. 331; *Leach*vs. *Thomas,*2 N. & McC. 110; *Cay*vs. *Galliott,*4 Strob. 282. The case of *Commissioners*vs. *Gains,*1 Tread. 459, affords an instance where the bond was considered void for substantial departure from the requirements of the statute. In some of the cases, the unlawful conditions only have been annulled, and the bonds held good, as .in *Anderson*vs. *Foster,*2 Bail. 501; *Bomar*vs. *Wilson,*1 Bail. 461; Dudley (Geo. R.) 22, 66. But none of these cases has full application to such a case as we now have before us, where the precise form of the bond is given by the statute. *Ordinary*vs. *Blanchard,*(3 Brev. 136,) is the only case in this State, cited to us, in which the condition of an administration bond has been submitted to judicial construction, and the decision there cannot be regarded as authoritative. The condition of the bond, there, pursued nearly the form prescribed by the English statute of distributions, and provided, amongst other things, that “ all the rest and residue of said goods, &c. shall deliver and pay unto such person or persons, respectively, as the said ordinary, by his decree, or sentence, pursuant to the true intent and meaning of the statutes and Acts of Assembly of force in this State, for the better settling intestates’s estates, shall limit and appoint,” instead of — “ all the rest, &c. shall deliver and pay unto such persons respectively, as are entitled to the same by law,” prescribed by the Act of 1789. Justices Nott and Smith thought the *31variance fatal; Colcock, that the bond sufficiently answered the intent of our Act; and Brevard, that the bond was favorable to the administrator, not unlawful in itself, nor against the policy of the State, and intimated doubt whether the st. Car. II. was repealed; and the other Judges do not appear to have given, any opinion.

The present case seems to be within the principle of *Brown*vs. *Spand,*(2 Mill, 12,) where a married woman, entitled in fee to land, had joined her husband in the execution of a release of the land, and had relinquished her dower according to the form given in the Act of 1795, by which she renounced “ all her interest and estate, and all her right and claim of dower.” In a relinquishment of inheritance, the married woman is required to renounce all her interest, estate and inheritance. It was held that the woman was not barred, mainly on the ground that the words, in the forms for relinquishing dower and inheritance, are not equivalent. Judge Nott, delivering the opinion of the Court, says, “ the words here used, are those required in a renunciation of dower, whereas, in a release of the fee simple, the word inheritance is expressly required. So that whatever meaning the words might have had otherwise, the Act has given a meaning to 'them which can not be departed from.” By like reasoning, we may conclude, that although legatees may be considered, in a popular sense, as entitled by law to their legacies, yet the Legislature, by requiring an administrator on a will to covenant expressly, *“*well and truly to pay and deliver all the legacies contained and specified in the will,” &c. has limited the application of the terms, *“*entitled by law,” to such persons as are entitled by the statute of distributions. If the bond here had conformed with reasonable strictness to the condition exacted from a general administrator, it might, perhaps, have been upheld, on the presumption that the ordinary had judicially determined the case to be one of intestacy, but the omission of that part of the condition which provides for the surrender of the administration on the probate of a will, certainly extends and amplifies the liability of the administrator and his sureties. *32The disadvantages incurred by the obligors by being required *to*enter into a bond for the administration of an intestate’s estate, instead of a bond for the administration with the will annexed, are well pointed out in the circuit decree. In *Monk*vs. Jenkins, (2 Hill Ch. 12,) Chancellor Harper says, “ where a statute is passed, authorizing a proceeding, which was not allowed by the general law before, and directs a mode in which the act shall be done, the mode pointed out must be strictly pursued. It is a condition on which alone the party can entitle himself to the benefit of the statute, otherwise the act is void.”

In Virginia and Kentucky, the conditions of bonds required from common administrators, and administrators with the will annexed, are almost literally the same with those prescribed in our Act of 1789; and in those States we have express authorities on the point under discussion, which we are content to follow. The case of *Frazier*vs. Frazier, sufficiently noticed in the opinion of the Chancellor, was re-affirmed in the case of *Morrow*vs. Peyton, (8 Leigh, 54.)

In *Fulcher*vs. Commonwealth, (3 J. J. Marshall, 592) the bond, on which the suit was founded, had the condition of an ordinary administration bond, but did not contain the condition for the payment of legacies, required from an administrator *cum testar mentó annexe.*Held, that the administrator and his sureties were not liable to suit for a legacy. See *Moore*vs. Waller, 1 Marsh. 488; *Barbour*vs. *Robertson,*1 *Litt. 93.*

*We*are of opinion that the bond is not good as a statutory bond.

On the second ground of appeal, it may be remarked that, if the bond, void for nonconformity to the statute, be good as a bond at common law, it is only good for the indemnity of the Ordinary, and in that phase, the Ordinary would be the obligee in interest, and his misrepresentation, even if growing out of a mistaken construction of the will, occasioning liability and damage to the obligors, might be well held to render the bond void. *We*prefer, however, to put our decision on the ground that, according to the cases above cited, a legatee has no right *33to sue on this bond; and that the question of its validity, at the common law, can be properly determined only in a suit in the court of law, in the name of the Ordinary.

It is ordered that the appeal be dismissed, and the decree of the Chancellor be affirmed.

Dunkin, Ch. concurred.

Dargan, Ch. having been of counsel, did not hear the case.

*Appeal dismissed.*