Vandalia Whig and Illinois intelligencer. [volume] (Vandalia, Ill.) 1832-183?, 1834-03-13
SUPREME COURT.
Tn PEOPLE &c FOR
'Hn USE OF EWING, Error from
Us. Morgan.


Opinion of the Court by Justice Smith
This case is submitted for the decision of
tbs court on written agreement, the par
tbs thereby waving the service of process,
aid entering their appearance and filing
record of the cause. By an inspection of
lie record, 1t appears that 1t was an action
o covenant, on an Executors bond, against
tie defendants in the Morgan Circuit
Court; and that only two of the obligors in
the bond have been sued The declara-
ton AYERS the appointment of Miller as
Executor. and that he took upon himself
the burthen of the administration and Ex-
ecutorship of the testator, and that he, :
with the other defendant and one Waller
Jones, then and there, made and entered
into bond, which is in exact conformity
with the form prescribed by the statute of
the slate, in such cases, and which is set
out IN h@c rerba. 1t is then averred, that
the defendants have not kept their coveh-
ants In the bond contained, but have bro
ken the same, because the rclator, Ewing,
recovered by default certain Judgment
against Miller, as executor, for the sum of
1884 in the Morgan Circuit Court, at The
May term of said Court, 1893, with costs
OF suit, to be levied of the goods and chat
ties OF the testator, in the hands of the Ex
ecutor, to be administered; upon which
Judgment an execution had been issued,
and returned nuild bona. The declaration
then AYERS a non-payment by defendant
Miller, OF such Judgment, and that he has
wasted and devastated the estate and goods
and chattels, and effects OF the testator. it
then assigns various breaches of the condi.
ton OF the bond, In not returning an inven-
tory and valuation of the persona estate of
the testator, and the not performing the
general requirement of the obligations IF
the bond, and AYERS that the defendant Mil
Ter, has sold and wasted the estate of the
tesiator; 1t, also, alleges thai no settlement
OF The estate has been made ia the Court
OF Probate OF Morgan county, although
one year had elapsed from the date O, The
letters testameniary, as by law he was
bound TO have done; nor has any accom-,
IT the actlngs and doings OF The Executor
been presented TO such Court. To this dec
laratlon there was gencrai demurrer. and
also, an ADMISSION or agreement, Thai
waller Jones executed The bond with the
other defendants, and that he was iointly
bound with the other defendants in the
bond; that he was still living, and that the
defendants might take advantage of the
non Jninder OF Jones upon the demurrer,
AS though plea in abatement had been
hled. AT the request of the parties a iudo
ment pro lorna was rendered, sustaining
the demurrer.
On this statement OF the case, two points
seem 10 be presented for consideration.
]. Whether the declaration is substan-
tally good, and whether, under our laws
he action on the bond could be maintained
for breach of its conditions.
9. Can the action be sustained against
two of the obligors only.
On the first point, it is not perceived WIN
the declaration is not sufficient. 1t coptaiDs
all the necessary recitals and averrments,
and the breaches seem to be well assigned.
The statute relative to wills and testa-
ments, in force July. 1899, in the 1872 sec
lIon,provldes, "Ihat whenever any execu-
tor, or administrator, shall fail to comply
with the provisions Of that act, or shall fail
to comply with any or all of the covenants
In his bond, an action may be forthwith IL;
s'iiuted and maintained on such bond A.
gainst the principal or securities, or both:
and the failure aforesaid shall be sufficient
breach TO authorize recovery in the same
manner, as though a devastavIt had been
previously established against such execu-
tor or administrator"
This section gives the action in cases OF
neglect or refusal to comply with either of
the provisions of the law, which control,
and governs the conduct If the executor.
as, also, in cases where he shall violate any
one or more of the covenants in the bond:
and has dispensed with The proof of a devas-
tavit, according to the course of the COM
mon law.
Upon the second point it seems only ne.
cessary to observe that the right to sue any
one or more of the obligors in the bond. in
the name of the people for the use of any
person who may be injured by the negIec,
or improper conduct of the executor, is ex-
pressly given by the provisions of the s5tl,
section of the same act. There can then
he no irregilarity or error, in not Joining
Jones, one of the obiigors, and it could
form no valid objection on demurrer, nor
be cause of abatement The statute has
IN this particular, changed the common law
rule as to the joinder of parties.
The Judgment of the Circuit Court is
reversed, and the cause remanded for fur
Their proceedings, not inconsistent with this
nnIn H. L.. a.