Weir v. Mead

Belcher, C.— Hiram G. Weir was a resident of Sierra county, and died in August, 1883, leaving a last will, by which he devised all his property to the respondents in this action, and in which he named the defendant Mead as the executor thereof. The will was duly admitted to probate by the superior court of Sierra county in October following, and letters testamentary were ordered to be issued to Mead, “upon giving bond required by law in the sum of six thousand and five hundred dollars.” A bond was thereafter approved by the judge and filed by the clerk of the court, which recited: “That I, Michael H. Mead, as principal, am held and firmly bound unto the state of California in the sum of six thousand and five hundred dollars, lawful money of the United States of America, in which sum I am also jointly bound with each of my sureties hereinafter named.....And we, Robert Forbes (and five others), as sureties, are severally held and firmly bound, and jointly with said [127]Michael H. Mead, are held and firmly bound unto the said state of California, in the following sums respectively .... for the payment of which, well and truly to be made, we, and each of us, respectively bind ourselves, our and each of our heirs, executors, and administrators, jointly and severally as aforesaid, firmly by these presents.”

Then follow the conditions of the bond and the signatures of the six sureties.

Mead, the principal, never signed the bond, but on the day it was filed letters testamentary were issued to him by the clerk, and there was indorsed thereon the usual oath for the faithful performance of his duties. Thereupon he took possession of all the property of the estate of the decedent, and thereafter continued to act as executor of the said will until June 9, 1890, when a decree was duly made and entered in the matter of the said estate, settling his final account and distributing the residue of the estate, consisting of twelve hundred and sixty-two dollars and sixty-nine cents in money, to the legatees named in the will who are the plaintiffs and respondents here.

Mead never paid to the distributees any part of the money so distributed to them, and in November, 1892, they commenced this action on the said bond to recover the same, making Mead and four of the sureties signing it parties defendant.

Mead failed to appear, and his default was duly entered. The other defendants answered, and among other things, denied in effect that the so-called bond ever became a valid bond, or imposed any obligation upon them, for the reason that it was never signed or executed by Mead, the principal named therein.