#### The People *v.*Falconer and Downing, impleaded with Sackett and another.

In a suit upon an administrators bond, the sureties will not be permitted to deny that the surrogate taking the bond and issuing the letters of administration, had jurisdiction of the case.

It is not necessary in the declaration to set forth the service of the various processes, and the minute and formal proceedings, preliminary to the making of each order or decree by the surrogate.

A count stating the issuing of the letters, the execution of the bond, that the administrators became possessed of assets, that they were required to account by an order of the surrogate, and did account before him, that he decreed a balance in their hands, and ordered it to be paid over to the distributees in specified sums, that the administrators neglected to pay and to comply with the orders whereby the bond was forfeited, and that the surrogate by an order directed it to be prosecuted ; was held sufficient on general demurrer.

It was also held that the count need not aver an application by the distributee to the surrogate to have an order made for prosecuting the bond.

July 14th,

July 27th, 1848.

Demurrer by the sureties, in an action of debt on an administrators bond.. The declaration set forth, the execution of the bond in the city of New York, by J. Raymond, W. H. Sackett, and the defendants, Downing and Falconer, dated May 27th, 1844, with a condition, that if J. Raymond and Sackett should faithfully execute the trust reposed in them, as administrators of all and singular the goods, chattels and credits of Henry Raymond,- late of Woodbridge, in the state of New Jersey, deceased, and should obey all orders of the surrogate of the *82county of New York, touching the administration of the estate committed to them, then the obligation was to be void. The declaration next averred, that after the execution of the bond, and on the same date, letters of administration were issued accordingly to Sackett and J. Raymond, by the surrogate of New York. It then assigned breaches, first, that Sackett and J. Raymond, or one of them, converted to their own use, assets of the estate of the intestate, which came to their hands as such administrators, to the amount of $4000, in violation of the trust so reposed in them.

Second. That after the execution of the bond, and after the expiration of eighteen months, the administrators were required to render an account of their proceedings, by an order of the surrogate of the county of New York; and that thereupon they did account before such surrogate, in September, 1846. That such proceedings were had upon such accounting, that the surrogate adjudged and decreed, on the 16th of September, 1846, that Sackett, one of the administrators, had in his hands of the assets of the estate of H. Raymond, a balance of $1986 40, and by the same decree, the surrogate ordered Sackett to pay one-third of such balance, being $662 13, to Fanny Raymond, the widow of the intestate, as and for her distributive share of the estate. That Sackett has not obeyed the order, and he has not paid that sum to Mrs. Raymond.

Third. That the surrogate, at the same date, made another decree, by which he ordered Sackett to pay to James Raymond, two-thirds of the balance so decreed against him, being $1324 26, which he has also omitted to do. By reason of which breaches, the bond became forfeited.

Fourth. That thereupon, on the 30th of January, 1847, the surrogate of the county of New York, did order and direct the bond to be prosecuted; and according to the *provisions*of the statute, an action has accrued to the plaintiffs, &c.

The defendants, Downing and Falconer, demurred to the declaration on various grounds, which are mentioned in the opinion of the court.

*F. Tillou*and *J. L. White,*for the defendants.

*83
      *Jon.*Miller, for the plaintiffs.

By the Court. Sandford, J.

The first ground of demurrer is, that the declaration fails to show that the surrogate of New York had jurisdiction of the administration of Henry Raymond. It appears that, he was domiciled in New Jersey, and there is no allegation that he left assets in this city.

We think a very plain answer to this objection is to be found in the bond executed by the parties, in which they became bound for their principal’s faithful execution of the trust reposed in them as administrators under the appointment of the surrogate of the county of New York, and for their obedience to all his orders touching such administration, ft would be strange indeed, if the sureties in an administration bond, after enabling their principal to possess himself of the personal estate by its execution, should be permitted to avoid its obligation, upon the plea that the officer granting the letters and receiving the bond, had no jurisdiction of the subject matter. The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction, in any proceedings for the assets which the appointment and bond have enabled the principal to receive. (See *Pritchett*v. *The*People, 1 Gilman’s R., Illinois, 525; *Morse*v. *Hodsdon,*5 Mass. 314.)

It is sufficiently averred in the declaration, that letters of administration were issued to Sackett and James Ra3maond, and that by virtue of those letters, they received a large amount of assets of the intestate.

The next objection, which embraces several specifications in the demurrer, is that the declaration does not show the facts necessary to give the surrogate jurisdiction to have made the orders to account, to pay over, and for the prosecution of the bond.

The defendants attorney seems to have supposed, that it was necessary to set forth in the declaration, every minute step in the proceedings before the surrogate; each application to him, the issuing and service of process, the proof of service, the date *84arid place of each act, that the orders were in writing and were entered of record, and even the filing of the papers.

In this the attorney was clearly wrong. The surrogate, having jurisdiction of these administrators, and of the administration committed to their charge; it was sufficient for the plaintiffs to set forth, as they have done in this court, that the administrators were at the proper time required to account, that they did account before the surrogate, that he found and decreed the balance in their hands, that he further decreed the distribution of such balance, and payment to the respective next of kin, that the administrators failed to comply with such decrees, that thereby the administration bond was forfeited, and that the surrogate thereupon ordered it to be prosecuted.

It was not necessary that the declaration should aver notice to the sureties of any of these proceedings. And it would have been very reprehensible in the plaintiff to have set forth a quarter of the matters, the omission of which is assigned as cause of demurrer.

If any grounds exist for impeaching the proceedings, either in respect of the sums decreed to be paid, or in any other matter open for consideration in this suit; the sureties may avail themselves of it by their plea and notice.

That the declaration is sufficient, we have no doubt. The cases of *The People*v. Dunlap, 13 Johns. 437; and *The People*v. *Barnes,*12 Wend. 492, show this inferentially, from the pleadings in the former, and the points raised in the latter.

It is said that the declaration should have stated an application to the surrogate to have the bond put in suit, either by a creditor, a legatee, or one entitled to a distributive share—as no others could apply, and the order could not be made except on such an application.

On this point, we think that there being shown a case in which the surrogate might direct the bond to be sued, and in which he would be required so to direct on the application of one entitled to a distributive share; and it being further shown that the surrogate has in fact made an order that the bond be prosecuted; it is to be taken that such order was rightfully made. His jurisdiction of the subject matter, founded on the *85administration, the account and order thereon, the distribution, the order to pay to the parties entitled, and the omission to pay, entitles the order to sue the bond, to be treated presumptively, as a valid judicial act, without the averment of a formal application or the service of a citation or order to show cause.

Upon the whole, we are satisfied that the count is sufficient, and the demurrer must be overruled, with leave to the defendants to plead on the usual terms.