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UNITED STATES V. WALKER, 109 U. S. 258 (1883)

U.S. Supreme Court

United States v. Walker, 109 U.S. 258 (1883)

United States to Use of Wilson v. Walker

Argued October 26, 29, 1883

Decided November 19, 1883

109 U.S. 258


1. When en administrator duly appointed in the District of Columbia is removed and an administrator de bonis non appointed in his place, the administrator de bonis non is not entitled to demand of the administrator so removed the proceeds of a claim against the United States due the intestate and collected by the former administrator, and cannot maintain suit against a surety of the former administrator to recover damages for failure by the former administrator to pay such sum to the administrator de bonis non.

2. A decree by the Supreme Court of the District of Columbia directing an administrator who has been removed to pay over to an administrator de bonis non appointed in his place a sum collected by the former from the United States for a claim due to the intestate is void for want of jurisdiction and furnishes no ground for maintaining an action against a surety of the former administrator for failure of that administrator to comply with the decree.

This was an action at law on an administrator's bond. The bond was made by Charlotte L. Ames and Cunningham Hazlett, as administrators of the estate of Horatio L. Ames, deceased, with Frederick P. Sawyer and the defendant in error, David Walker, sureties. It was in a penalty of $120,000, was payable to the United States, and was subject to the condition that the said Ames and Hazlett should well and truly perform the office of administrators of Horatio Ames, deceased, and discharge the duties of them required as such without any injury to any person interested in the faithful performance of said office. Hazlett died at a date not given, and after his death and until January 9, 1875, Charlotte L. Ames continued to be

Page 109 U. S. 259

sole administratrix, and on the day last named she was removed from said office by order of a justice of the Supreme Court of the District of Columbia, and on the same day Nathaniel Wilson was appointed administrator de bonis non. On January 22, 1876, Charlotte L. Ames, in the settlement of her account as administratrix, was directed by the decree of a justice of said supreme court, holding a special term for the transaction of orphans' court business, to pay over to said Nathaniel Wilson, administrator de bonis non of the estate of Horatio Ames, deceased, on or before February 8, 1876, the sum of $34,876.75. She failing to pay this sum or any part of it, Wilson, administrator de bonis non, on April 12, 1876, brought this suit in the name of the United States for his use, on the bond above mentioned, against Charlotte L. Ames, David Walker, and the administrators of the estate of Frederick P. Sawyer, who, on August 31, 1875, had departed this life. The suit was afterwards discontinued as to Charlotte L. Ames and the administrators of Sawyer, and was prosecuted against David Walker alone.

The declaration contained two counts. The first count set out the obligation of the bond without stating the condition. The second count stated the obligation of the bond and averred the condition as above set forth, and assigned as breach the failure of Charlotte L. Ames to pay over to Wilson, the administrator de bonis non, the said sum of $34,876.75.

The defendant pleaded to the first count the condition of the bond and its performance.

To the second count he pleaded first

"that by the condition of the bond the defendant, as surety, became liable to the plaintiff, as administrator de bonis non, only for such of the assets of the estate as had not been converted into money by the said administrators or the survivor, and the defendant says that the assets of said estate consisted wholly of a claim or chose in action owing by the government of the United States, and that the money claimed in this action is the proceeds of said claim or chose in action collected from the government, and thereby converted into money,"

etc. The second plea to the second count averred that the defendant, as surety as aforesaid,

Page 109 U. S. 260

was liable only for such assets of said estate as had not been administered by said administrators or the survivor, and that the money claimed in this action is for assets which had been administered before the removal of said surviving administrator from office, and the appointment of plaintiff. Both these pleas also aver that defendant was not a party to the proceeding in which the order to pay over was made and was served with process therein, nor did he voluntarily appear.

In his replication to the first plea (the plea of condition performed) the plaintiff set out three breaches, each of them consisting in the failure of the administratrix to pay over the money to her successor in compliance with an order of the court. The plaintiff demurred to the remaining pleas. The defendant demurred to the replication to the first plea.

Issue was joined on both demurrers, and the court, in general term, overruled the plaintiff's demurrer, sustained that filed by the defendant, and entered judgment for the defendant. The plaintiff thereupon sued out this writ of error.

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