Irwin v. Backus

By the Court, Sanderson, C. J. * This is an action upon the official bond of the defendant Backus as Public Administrator of the City and County of Sacramento, against him as principal and his co-defendants as sureties. The suit is brought by his successor in office to recover the amount of a certain estate which came into the hands of Backus in the course of official business, and which he refused to pay over to his successor, the plaintiff, pursuant to the order and decree of the Probate Court. The plaintiff had judgment in the Court below, and the defendant, having moved for a new trial, which was denied, appeals. The facts, as disclosed by the record, are substantially as follows:

In 1857, Backus obtained letters of administration upon the estate of one J. T. M. Cooper and took charge of the same through one J. C. Barr, who for a long time previous and subsequent thereto acted as the clerk or agent, or attorney in fact of Backus, in connection with the business of his office of Public Administrator. The business in the Probate Court seems to have been transacted by Backus, and the collection of the assets belonging to the estate seems to have been made by Barr. After keeping the estate in his hands without rendering an account until May, 1859, Backus, upon petition of the heirs, was cited by,, the Probate Court to render his account pursuant to law. In reply to the citation, Backus alleged that the deceased was not a resident or inhabitant of the county at the time of his death, but that he was a resident of - County, (name not stated,) and denied the jurisdiction of the Court, charging that the letters of administration which had been issued to him were therefore null and void. At the same time he filed his final account, and a day was appointed for the healing, of which due notice was given according to law. Upon the issues thus formed a trial was had in the Probate Court, resulting in the following find[220]ing of facts and decree: “ Sometime in the spring of 1857, J. T. M. Cooper departed this life in the City and County of Sacramento, where he resided prior to and at the time of his death. It does not appear that he ever had any residence in the State of California elsewhere than in Sacramento County. After the death of said Cooper, to wit: on the 21st day of April, 1857, Gordon Backus, then Public Administrator of Sacramento County, petitioned to be appointed administrator of said estate, and on the said 21st day of April, 1857, the Probate Court of said County of Sacramento made an order appointing said Gordon Backus administrator of said estate as aforesaid of said J. T. M. Cooper, and that he take charge of and administer upon the same according to law. That said Probate Court also appointed John C. Barr, L. Farmer and M. McIntyre appraisers of said estate, who went on and appraised the same, and found the said estate to consist of the following items, to wit: Cash, one hundred and fifty-two dollars and thirty-eight cents; W. H. Bullard’s certificate of deposit, five hundred and fifty dollars; W. L. Pritchard’s note, six hundred and fifty dollars; T. A. Goodell’s note, two hundred dollars; A. P. Carter’s note, two hundred and eighty dollars; making a total sum of one thousand eight hundred and thirty-two dollars and thirty-eight cents. The whole of which estate, according to the items aforesaid, was paid over by Morrison McIntyre to John C. Barr, who received the same as the agent or clerk of the said Gordon Backus, and who was authorized by the said Backus to receive the same by his authority. Afterwards said Barr collected all the notes outstanding, save the note on A. P. Carter. That said Barr, acting as the agent or clerk of Backus, collected in cash the sum of one thousand five hundred and sixty dollars; that out of this some small bills were paid, such as funeral expenses, affidavits of appraisers, etc. That said Barr paid over to said Backus, in cash, the sum of one thousand three hundred and thirty-eight dollars, in addition to the sum of two hundred and two dollars and thirty-eight cents, which Barr collected, which he informed the said Backus was subject to his