#### W. V. PARKER, Administrator of MAGGIE F. GROVES, v. F. L. POTTER, Administrator of JOHN A. GROVES, et al.

(Filed 22 March, 1933.)

Executors and Administrators G e — Administrator’s bond held liable for money erroneously paid administrator under color of his office.

The bond of an administrator covers “all moneys received under color of official authority,” and where the administrator is paid the proceeds of an insurance policy on the life of his intestate, and it is later determined by judgment of the Superior Court affirmed by the Supreme Court that the proceeds of the policy were the property of the estate of the intestate’s wife, and the administrator fails to account therefor to her estate, his bond as administrator is liable therefor, although the funds *408were improperly paid into Ms hands as administrator, and the liability of the surety on his administration bond may be determined in the original action to which the surety has later been made a party defendant.

Appeal by defendant United States Fidelity and Guaranty Company from *Crammer, J.,*at September Term, 1932, of DupliN.

No error.

The agreed statement of facts pertinent to tbe defendant’s appeal is as follows:

That J. A. Groves, on 4 April, 1929, wrongfully and feloniously shot and killed his wife, Maggie F. Grove's, and then shot and killed himself.

That at the time of their deaths, J. A. Groves had a policy of life insurance on his life in the Mutual Life Insurance Company of Maine, for $1,000, payable to his wife, Maggie E. Groves.

That F. L. Potter, Sr., duly qualified as administrator in Duplin County on the estate of J. A. Groves, deceased, and gave an administration bond in the sum of $12,000 with the defendant, the United States Fidelity and Guaranty Company of Maryland as surety on his said bond and entered immediately upon the administration of said estate, and on or about 1 May, 1929, the said F. L. Potter, Sr., as such administrator, collected from the Mutual Life Insurance Company of Maine the said policy of $1,000, which he used as a part of the estate of J. A. Groves, deceased, in administering said estate.

That soon thereafterwards, *~W. Y.*Parker, the plaintiff, duly qualified as administrator on the estate of his sister, Maggie F. Groves, deceased, and made demand upon F. L. Potter, Sr., administrator of J. A. Groves, deceased, for the said $1,000 collected on said policy, which demand was refused and the said plaintiff instituted action for the recovery of the same, and the court adjudged that the estate of J. A. Groves, deceased, on account of his wrongful and felonious slaying of his wife could not recover said insurance and that the same belonged to the estate of Maggie F. Groves, his dead wife. The facts and the law regarding the same being set out in the case of *Parker v. Potter et al.,*200 N. C., 348, which is incorporated as a part of this finding of fact.

That the administration bond of F. L. Potter, Sr., on which the defendant, the United States Fidelity and Guaranty Company of Maryland, is surety, shall be copied and hereto attached as a part of the findings of fact.

That F. L. Potter, Sr., administrator, died on 5 January, 1930, and thereupon his son, E. L. Potter, Jr., duly qualified as his administrator in Duplin County and gave an administration bond in the sum of $12,000, with the defendant, the United States Fidelity and Guaranty Company as his surety.

That Nellie Susan Outlaw, sister of J. A. Groves, deceased, duly qualified in Duplin County as the administrator *d. b. n.*of J. A. Groves, deceased, upon the death of F. L. Potter, Sr., administrator.

*409That after tbe rendition of tbe decision in tbe Supreme Court in tbe original cause, 200 N. C., 348, an order was made in tbe cause making F. L. Potter, Jr., administrator of F. L. Potter, Sr., and Nellie Susan Outlaw, administratrix *d. i. n.*of Jobn A. Groves, deceased, and tbe United States Fidelity and Guaranty Company, surety on tbe administration bond of F. L. Potter, Sr., on tbe estate of J. A. Groves, deceased, parties defendants to tbe action and additional pleadings ordered filed, and process was issued against these new parties and additional pleadings duly filed herein.

That -in tbe original action and before tbe United States Fidelity and Guaranty Company was made a party hereto,'there was an agreed statement of facts signed by all tbe counsel, tbe second paragraph of which is tbe following:

“That at tbe time of their deaths, J. A. Groves bad a policy of life insurance in tbe Mutual Life Insurance Company of Maine for $1,000, which bad been collected by F. L. Potter, administrator; said policy of insurance being payable to Maggie F. Groves, wife of J. A. Groves.”

That in tbe seventh article of tbe original complaint against F. L. Potter, administrator, is tbe following allegation:

“That at tbe time of bis death, tbe defendants’ intestate, J. A. Groves, bad in force a policy of life insurance on bis life in tbe Mutual Life Insurance Company of Maine, for tbe sum of $1,000, which policy was payable to bis wife, Maggie F. Groves, as beneficiary . . . and tbe defendant, F. L. Potter, administrator of J. A. Groves, has collected tbe said policy of $1,000 from tbe aforesaid Mutual Life Insurance Company and now has tbe said $1,000 in bis possession. . . .”

Tbe defendant, F. L. Potter, administrator, filed answer under oath to said complaint and in bis answer to tbe seventh article above we quote as follows:

“Tbe allegations of paragraph 7 of tbe complaint are admitted.

That after tbe new parties were made herein, including tbe United States Fidelity and Guaranty Company as one of tbe defendants, tbe plaintiff filed a new complaint herein, under oath, in tbe 3rd article of which is tbe following:

“That tbe said F. L. Potter, Sr., as such administrator, after giving said bond, -entered upon tbe administration of said estate and took into bis possession and collected on or about 1 May, 1929, as such administrator, a policy of life insurance for $1,000 on tbe life of J. A. Groves, bis intestate, in tbe Mutual Life Insurance Company of Maine, which policy was payable to Maggie F. Groves, bis wife, plaintiff’s intestate, and has unlawfully failed to pay said money or any part thereof to tbe plaintiff administrator, although a former judgment in this cause ren*410dered by bis Honor, Judge Grady, said $1,000 was adjudged the property of tbe plaintiff administrator, which judgment was affirmed iti rhe Supreme Court and reported in 200 N. C., 348.”

That the defendant, United States Fidelity and Guaranty Company filed answer under oath to said complaint on 21 October, 1931, and the answer to the said 3rd article of the complaint is as follows:

“It is admitted that F. L. Potter, Sr., administrator of J. A. Groves, entered upon the administration of said estate and took possession of and collected on or about 1 May, 1929, as such administrator, a policy of life insurance for $1,000 on the life of J. A. Groves, his intestate, in the Mutual Life Insurance Company of Maine, and it is admitted that by a former judgment of this Court the said $1,000 .life insurance was adjudged the property of the plaintiff administrator, but the answering defendant says that it was not a party to said action to which said judgment was rendered.”

That neither the defendant, F. L. Potter, administrator, during his life, nor the defendant, the United States Fidelity and Guaranty Con? pany, surety on his administration bond, nor any of the other defendant in this action, nor any other person has ever paid to the plaintiff V *>*said $1,000 insurance money or any part thereof.

Upon the contested issues the jury returned the following verdict:

1. Did the defendant’s intestate, John A. Groves, wrongfully and feloniously kill his wife, Maggie F. Groves, the plaintiff’s intestate, as alleged in this complaint: Answer: Yes.

2. If so, what damages, if any, is the plaintiff administrator entitled to recover of the defendant administrator on account of the wrongful and felonious slaying of the plaintiff’s intestate, Maggie F. Groves, as alleged in the complaint? Answer: $500.

3. At the time of his death, did the defendant’s intestate, John A. Groves, have in force a policy in the Mutual Insurance Company of Maine for the sum of one thousand dollars, payable to his wife, Maggie F. Groves, and has the defendant administrator collected same, as alleged in the complaint? Answer: Yes.

4. Has the defendant Potter, administrator, paid said sum, or any part thereof, to the plaintiff? Answer: No.

The court adjudged upon the verdict and the facts agreed that the plaintiff recover of Nellie Susan Outlaw, administratrix *de bonis non*of John A. Groves, the sum of $500 with interest thereon from 5 September, 1932, and of the administrator of F. L. Potter, Sr., and the United States Fidelity and Guaranty Company of Ealtimore, Md., surety on his administration bond, $1,000 with interest from 1 May, 1929, the amount of the insurance policy paid by the Mutual Life Insurance Company of Maine.

*411*J ohn A. Gavin for appellant.*

*Butter & Butter for appellee.*

Adams, J.

J ohn A. Groves took out a policy in the Mutual Life Insurance Company of Maine for $1,000, payable to Maggie Groves, his wife. After killing her he killed himself. In *Parker v. Potter,*200 N. C., 348, we held that Mrs. Groves was the beneficiary in the policy and that her administrator is entitled to the whole amount of the insurance money. The administrator of John A. Groves collected the amount due on the policy and has refused to account for it. The appellant is the surety on his bond.

The administrator of Mrs. Groves brought suit against the administrator of John A. Groves and the appellant, as surety, to recover the amount paid the latter administrator by the insurance company, and was awarded judgment. The appellant says that the court committed error for the reason that the funds derived from the policy were not a part of John A. Groves’s estate; that the insurance company made payment with knowledge of this fact; and that the administrator of Mrs. Groves has never demanded payment of the insurance company.

The administrator of John A. Groves admits the collection and nonpayment of the money. In its first answer the appellant made the same admission, but denied it in the second. The bond on which it is surety is set out in the record, and it is manifest that the administrator of John A. Groves collected the policy under color of his office and not in his individual capacity as trustee. Indeed, he applied the money as a part of the estate of John A. Groves. The surety on his bond is therefore liable for the misapplication. “All moneys received under color of official authority are covered by the bond.” *Lafferty v. Young,*125 N. C., 296.

No error.