Moody v. Pacific Surety Co.

NOURSE, J., pro tem.

This is an appeal from a judgment in favor of plaintiff and against the surety on the bond of W. M. Smith, as administrator of the estate of A. E. Moody, deceased.

The conceded facts are that in January, 1905, Smith was appointed administrator of the estate; in February, 1911, he filed his account as such administrator, showing $2,577.66 in his hands belonging to said estate. In January?, 1914, the probate court removed Smith as administrator and appointed respondent in his stead; in February, 1917, a citation was. issued to, and personally served on, Smith, requiring him to render an account; upon his failure to appear the respondent, by order of the court, rendered an account for him, showing $2,577.66 in Smith’s hands owing to the estate; this account was settled, and in April, 1917, a written demand for the payment to respondent of this sum was made on appellant before the commencement, of this action. Respondent in this action sued the surety for the amount shown by this account to be due from Smith to the estate, and recovered judgment for that amount.

[1]

Appellant insists that the complaint failed to state a cause of action, in that it failed to allege nonpayment by Smith to the respondent, but merely alleged that “said W. M. Smith . . . has never accounted to the plaintiff! or to the heirs of said A. E. Moody . . . for said sum,” and that

defendant

has failed, neglected, and refused to pay the same or any part thereof.” ¡

[289]

Of course, the allegation that the defendant has failed to pay, standing alone, is not a sufficient allegation of nonpayment, because payment might have been made by another. But the complaint alleges that neither the administrator nor anyone in his behalf has accounted for said sum or any part thereof. This is followed by the allegation that the administrator charged himself with the exact amount sued for; that upon‘his failure to appear in answer to the citation to account, the court found that same amount to be still due; and that the defendant after demand refused to make payment.

The bond, which is made a part of the complaint, contained the condition that the administrator would “faithfully execute the duties of the trust according to law.” An administrator is chargeable with the whole of the estate coming into his possession. (Code Civ. Proc., sec. 1613.) One of the duties of an administrator is to pay over all sums of money due from him to the distributees in accordance with the decree of distribution, and this he must do before he may be discharged. (Code Civ. Proc., sec. 1697.) Another duty is to “render an exhibit under oath showing the amount of money received and expended by him . . . and all other matters necessary to show the condition of its [the estate’s] affairs.” (Code Civ. Proc., see. 1622.)