United States Fidelity & Guaranty Co. v. Mathews

RICHARDS, J.

This appeal is from a judgment in favor of defendants and is presented upon the judgment-roll alone. The facts as set forth in plaintiff’s complaint and as found by the trial court are briefly these: Thomas W. Wilson died intestate on the eighteenth day of June, 1920, in the county of Lassen, leaving estate therein to which his three children, George W. Wilson, Rena M. Lucius and Dorothy Wilson, succeeded share and share alike. On August 2, 1920, George W. Wilson was appointed administrator of the estate of his deceased father and qualified by giving a bond in the sum of $5,300 with two personal sureties, and entered upon his duties as such administrator. On March 3, 1921, George W. Wilson borrowed from the Growers Bank of San Jose, California, the sum of $2,600, and as security for such loan gave to said bank his promissory note for that amount, together with an assignment of all of his interest in the estate of Thomas W. Wilson, deceased, and in and to all of the property of said estate to which he might be entitled, and all fees and commissions accrued or to accrue to him as administrator of said estate. This assignment was a few months after the making thereof filed with the papers of the estate. On September 12, 1921, the personal sureties upon the bond of George W. Wilson made application to the court to be released from further liability, and on November 10, 1921, the said administrator filed a new bond in the same amount and upon which the plaintiff herein was the sole surety. On June 27, 1922, for value received and after the maturity of the note, the said Growers Bank assigned and delivered to the Bank of Lassen County said note together with an assignment of the interest of said George W. Wilson in the estate of his deceased father, and which assignment was also duly filed with the papers in said estate. On January 8, 1924, the Bank of Lassen County filed a petition in the matter of

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said estate praying for the revocation of the letters of administration theretofore issued to said George W. Wilson and for the appointment of N. G. Mathews, one of the respondents herein, as the administrator of said estate. On January 31, 1924, an order was duly made by the said court granting the prayer of said- petition, and thereupon said Mathews qualified as such administrator and has ever since been the administrator of said estate. On April 9, 1924, Mathews as such administrator commenced an action against George W. Wilson and his surety, the plaintiff and appellant herein, seeking to compel said Wilson to make an accounting of his transactions as administrator of said estate and that it be determined in what amount, if any, said Wilson was indebted to said estate and that judgment be rendered against him for such amount and that the plaintiff in that action also have judgment against the said surety for sucportion of said indebtedness as it should be found liable for under its surety bond. On or about May 6, 1924, George W. Wilson filed in said court what purports to be a final account of his administration of said estate and thereafter and upon October 20, 1924, the court in which the above action was pending made and filed its findings of fact and conclusions of law by which it was held that George W. Wilson was indebted to the estate of said deceased in the sum of $2,807.16 and of this amount his liability for the sum of $2,249.77 had accrued during the period covered by Ms second bond upon which the appellant herein is surety. Thereafter and on the fifteenth day of May, 1925, the appellant herein paid the administrator of said estate in full of its liability as such surety the sum of $2,267.29 and immediately thereafter brought this action against N. G. Mathews as administrator of said estate and the Bank of Lassen County, the purpose of said action being that of obtaining a decree to the effect that after its foregoing payment of the amount for which it had been held liable as such surety to said estate it became subrogated to all of the rights, remedies and facilities which the estate of Thomas W. Wilson then had or might thereafter acquire to collect said sum of $2,267.29 with interest from said George W. Wilson and to retain said sum with interest from any distributive share due said Wilson out of the estate of his deceased father and that the plaintiff’s right to have said sum retained for its