Elizalde v. Murphy

HARRISON, C.

Action against the sureties upon an administrator’s bond.

In January, 1894, Ernest Graves was appointed by the superior court of Santa Barbara County administrator of the estate of Marcos A. Elizalde, deceased, and thereupon, and under the direction of the courf, he, as principal, with Meyer Greenberg and A. McAllister as sureties, executed and filed

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therein a joint and several bond in the sum of twenty thousand dollars for his faithful discharge of the duties of his office. August 2, 1895, upon the petition of the heirs at law of the deceased, representing to the court that Meyer Greenberg had become insolvent, the administrator, as additional security for the faithful discharge of his trust, caused to be executed and filed in said court a further undertaking, purporting to be for the sum of twenty thousand dollars, in which he "was named as principal, and J. T. Murphy and the aforesaid A. McAllister were named as sureties, which was by the court approved and ordered to be accepted, and thereupon the court ordered that Meyer Greenberg, surety upon the former bond, be released from all liability thereafter to accrue. The court finds that this undertaking was originally made and signed by McAllister for the sum of four thousand dollars, but that before it was approved and filed it was altered and raised without his consent or knowledge, so as to read in the sum of twenty thousand dollars. November 16, 1898, J. T. Murphy, one of the sureties on this bond, died, and thereafter, under an order of the court requiring the administrator to furnish additional security, he caused a further undertaking in the sum of ten thousand dollars to be executed and filed, with himself as principal, and the defendants P. W. Murphy and Luigi Marre as sureties. Graves filed an annual account of his administration May 28, 1898, which was duly settled by the court, and subsequently thereto received and paid out certain moneys for the estate, and died insolvent July 15, 1900, without rendering any account thereof, or any further account of his administration of the estate. After his death the respondent herein was appointed as his successor in the administration of the estate, and brought the present action against the defendants as sureties upon the aforesaid undertakings for an accounting and to recover the amount of money belonging to the estate, which should have been in the hands of Graves at the time of his death. The court found that Graves had received of money belonging to the estate the sum of $3,011—no part of which had been paid out or accounted for by him—and rendered judgment against the defendants therefor. From this judgment the defendant McAllister has appealed, bringing the appeal here upon the judgment-roll, without any bill of exceptions.