
    The State of Maryland, use of Susan Boteler, vs. Norah Digges and Charles Digges, surviving obligors of Daniel C. Digges, deceased.
    Trustee’s Bond — Acti'on- upon. — Iivorder to enable a party to maintain art' action at law against the sureties upon a trustee’s bond, to recovera sum of money audited’!» tile plaintiff, and ordered to be paid by the trustee, it is necessary to notify and demand payment of the trustee in his life time.
    Jurisdiction in Equity. — In case of the death of the trustee without receiving such notice and demand, the plaintiff’s only remedy will be in a Court' of Equity.
    Appeal.from the Circuit Court for Prince GúoígéV County:
    The appellant sucd’thc appellees an sureties on the bond ©fD. C. Digges, trustee for the sale of the real estate of "William Boteler, under a decree of the Equity Court for Prince George’s County.
    The breach is assigned in the-?mr., which shews that the1 trustee sold the land, and reported the sales; and that sc-counts were stated', distributing the proceeds,- of which* Susan Boteler, as widow, was entitled to $222v24. That-the account was duly ratified, and afterwards the trustee' died, and the said Susan Boteler since his- death, notified his administrators of the ratification’ of said account, and demanded of them the payment of.said sum of money, * *" * * “but the said D. C. Digges, in bis life time, and tbé1 said defendants since his death, failed to-pay the same.”
    The defendants demurred to1 the nar., and the judgment1 being, for them> the plaintiff appealed.
    The cause was argued before Bowie, C. J., and Bartol, Goldsborough and Cochran, J.
    
      Frank H. Stockett, for the appellant:
    The question in this- case is res integra in this State, and’ it is submitted, that this Court will hesitate before it establishes a doctrino which must be calculated to work serious injustice to suitors in Courts of Equity.
    In the case of Deni vs. Maddox, 4 Md. Rep., 522, it was decided, that the administrator of the trustee was accountable for the proceeds of real estate sold by the trustee, to the extent of the personal assets in his hands, and this decision, it would seem, clearly establishes the doctrine, that he was the.proper party to whom notice should be given, standing in the position and representing his intestate who was the trustee. If not, to whom should the notice be given ? It must either be given to the administrator of it must fail, for no case goes to the extent Of declaring that the sureties on the trustee’s bond are entitled to such notice, and the security which the bond was intended to afford to suitors would, in all such cases, prove a delusion. Boieler & Belt vs. Brooks, 7 Q. &. J., 143.
    In the case of Oyster vs. Annan, 1 G. & J., 450, the Court in delivering its opinion expressly say, that the executor or administrator represents the deceased testator, or Intestate, in all and each of his contracts; certainly intending that a notice to such executor or administrator shall answer all the purposes of a notice to the trustee, whose death had prevented such notice being given; but It cannot be supposed that the Court meant to confine the parties to the cause in equity, to their remedy alone against the personal estate of the trustee, which may be utterly insolvent, and thus render nugatory the security supposed to be furnished by the bond.
    Guided by the foregoing principles, it is respectfully submitted that the averments in the amended nar. are sufficient to maintain the action, and that the judgment rendered by the Court below should be reversed, and judgment given for the appellant.
    
      W. H. Tuck, for the appellees:
    1st. The notice of the audit to the administrators of the trustee, is not sufficient to bind the sureties in a suit oft ’the bond. State, use of Oyster, vs. Annan, 1 G. & J. 450. Scóttt vs. Hall, use of DucJcer, 2 Md. Rep., 284.
    2nd. The declaration does not state .that the administrator refused to pay. For anything that appears, the estate of the trustee was ample, and his administrators did pay ou request. Semmes, use of Baden, vs. Naylor, 12 G. & ■J., 362.
   Goldsborough, J.,

delivered the opinion of this'Court:

In this case Susan Boteler, the appellant, was-entitled -as the widow of Wm. Boteler, to the sum of $222.24, allowed to her in the distribution of the proceeds of the sale of her husband’s real estate. The auditor’s report ascertaining this sum, was finally ratified and confirmed by tíie Circuit Court for Prince George’s County, and the ¡trustee, Daniel C. Digges, was directed by the usual order accompanying the ratification of the report, to ;pay- over the proceeds in accordance therewith. Before notice .could be given and demand made, upon the ¡trustee to pay the amount claimed, he departed this life. Administration upon his personal estate was thereafter granted to Elizabeth C. Digges and Richard B. B. Chew, and notice was served upon them and demand made to pay the said sum; they failed to pay the same, and suit was instituted by the appellant in thp name of 'the -State -for her use, against the appellees, the sureties in the trustee’s bond.

'The amended declaration set out-the material facts above stated, and the appellees demurred to the declaration. The Court below gave judgment on the demurrer for the defendants. From this judgment the appeal before us was taken. We deem it unnecessary to determine as a question of law, the sufficiency of the averments in the declaration, as we are justified, by the weight of authority, in deciding, that the remedy of the appellant, under the circumstances, is only in a Court of Equity.

The ease of Oyster vs. Annan, 1 G. & J., 450, has established the law, that, to sustain a suit on a trustee’s bond for a sum allowed in an auditor’s report, finally ratified and confirmed, tlie party suing must aver and prove a service of tbe order of ratification, on the trustee, and a demand of payment of tbe sum specified.

There is no breach of the contract, nor is the trustee in default until his refusal or failure to comply with the order of the Court after notice thereof. If, as in this case, the death of the trustee rendered it impossible to give notice or make demand of payment, tbe sureties should not be placed, in a position of legal responsibility which bad not attached to the trustee at tbe time of bis death. The notice to the administrators, and demand upon them, could not affect the sureties at law, nor could it affect the administrators who were no parties, but strangers to the proceedings in equity.

In the case of Brooke vs. Brooke & others, 12 G. & J., 306, where many of the prominent facts were similar to those ill this case, tliis Court said tbe death of tbe trustee, under tlie circumstances in which it occurred, was such an accident as entitled the party seeking it, to relief in equity in tlie manner in which lie seeks it.

We think there is another substantial ground why relief should be sought in equity. If, as is averred in the appellant’s declaration, the trustee received tbe purchase money for tbe sale of the real estate, and there is nothing to show that it was kept separate and distinct from his own personal estate, it necessarily went into the hands of his administrators. By a bill in equity, tbe administrators being made parties, they could be called on to account for those funds and to pay and satisfy the appellant’s claim in part or in whole, according to the amount of assets to he administered, and to that extent, relieve the the appellants front their responsibility, and they being made parties, the Court could, enforce the execution of their contract according to its obvious meaning and design. See tbe authorities cited by this Court in their opinion in 12 G. & J., 321.

(Decided March 11th, 1864.)

Being therefore of opinion that there is no error in the ruling of the Circuit Court, the judgment’will be affirmed.

Judgment affirmed.  