Biggins v. Raisch

California Supreme Court Apr 30, 1895 No. No. 15771Published

Before: Vanclief

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Holding. The court held that sureties on an executor's bond are liable for the principal's failure to account, and that passive delay by heirs in compelling an accounting does not discharge the sureties' obligations. Furthermore, a judgment against an executor's estate is conclusive against the sureties on his bond, even if they were not parties to that specific action.

Issues

Whether the laches of heirs in failing to compel an executor to account discharges the sureties on the executor's bond.
Whether a judgment against an executor's estate is conclusive against the sureties on his bond when they were not parties to the action.

Disposition. affirmed

Quotations verified verbatim against the opinion

“merely passive delay and forbearance on their part could not discharge the sureties nor affect their obligation”

“the judgment against the executrix of the will of Patrick Mallon is not conclusive against the sureties on his bond, since they were not parties to that action. But it was held otherwise in the case of Chaquette v. Ortet”

Synopsis

Action upon Bond op Deceased Executor—Delay op Administration —Laches op Heirs.—Where an action is brought by the heirs of a decedent’s estate upon the bond of a deceased executor, who did not close the administration of the estate, or render any account thereof to the probate court, and the action is commenced within a reasonable time after the death of the executor, the heirs cannot be charged with laches by merely passive delay and forbearance on their part, though they might have compelled the executor to account to the probate court long before he died, nor could such merely passive delay and forbear, anee on their part discharge the sureties on the executor’s bond, nor affect their obligation which was conditioned that their principal should perform all the duties of executor, which obligation was not discharged owing to failure on their part to procure their release from further re. sponsibility as provided in sections 1403 and 1404 of the Code of Civil Procedure.

Id.—Effect op Judgment Against Exeoutrix op Deceased Executor— Res Adjudicata.—A judgment obtained against the executrix of the deceased executor whose estate was insolvent is conclusive against the sureties on his bond in an action against them to recover from the sure, ties of the deceased executor the amount found due by the judgment to -the estate of which he was the executor.

Vanclief, J. Thomas Biggins died testate in the county of Marin, September 8, 1879. On October 6, 1879, the will was proved and Patrick Mallon was appointed executor thereof, and executed a bond for the faithful pertormance of his duties in the sum of twenty-five thousand dollars, with the defendants and Patrick Burns as sureties thereon. Patrick Burns died before the commencement of this action. The executor, Patrick Mallon, died testate on January 26, 1890, without having closed the administration of the estate and without having rendered any account thereof to the probate court. On February 17, 1890, letters of administration with the will annexed were issued to the plaintiff, who six months thereafter brought an action in the superior court of the city and county of San Francisco against Ellen Mallon, executrix of the will of Patrick Mallon, and the defendants herein for an accounting in the matter of Patrick Mallon’s administration of the estate of Thomas Biggins. The defendants herein were joined as defendants in that action on the ground that they were sureties on the bond of Patrick Mallon, but their demurrer to the complaint on the ground that they were improperly joined as defendants having been sustained by the court, the action proceeded against the executrix of Patrick Mallon alone. On the trial of that action the court stated the account of Patrick Mallon, as executor of the estate of Thomas Biggins, deceased, charging him and his estate with a balance of thirteen thousand two hundred and eighty-one dollars and fifty-eight cents, and thereupon ordered and adjudged that his executrix, the defendant in that action, pay to the plaintiff therein, in due course of administration, the said sum of thirteen thousand two hundred and eighty-one dollars and fifty-eight cents, with costs. Said executrix, having failed and refused to pay said sum on [212]demand, and the estate of Patrick Mallon being insolvent, this action was brought to recover said sum, with interest, from the defendants as sureties on said bond.

The obligations of the sureties are expressed in the bond as follows:

“And we, said sureties, are severally held and bound with said Patrick Mallon, are held and bound unto the state of California as follows:

“ Gottfried Raisch in the sum of ten thousand dollars, Patrick Burns in the sum of twelve thousand dollars, John Mallon in the sum of five thousand dollars, for the payment of which sums we and each of us respectively bind ourselves, our heirs, executors, and administrators, jointly and severally as aforesaid, firmly by these presents.

Biggins v. Raisch

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