
    APOLLONIE MUNDORFF, Plaintiff, v. JOSEPH WANGLER, as Executor, &c., of James Moore, Deceased, Defendant.
    I. ADMINISTRATOR’S BONDS.
    1. Action against executor of surely for a breach of the bond, by the omission of the administrator to obey a decree for payment.
    
    
      (a) Pbima facie case fob plaintiff, what establishes.
    1.' The decree directing the payment and stating facts sufficient to show that the surrogate was proceeding within Ms jurisdiction, the petition for the decree, and the citation issued thereon, and the bond, having been read in evidence; and it having been proved that the administrator had omitted to perform the decree, that the surrogate’s certificate under the decree had been duly docketed, that execution had been duly issued and returned unsatisfied, and that the surrogate had assigned the bond,
    held,
    that plaintiff had made out a case which required the direction of a verdict in his favor.
    1. Unnecessary proof.—Proof of proceedings anterior to petition (other than the bond) is in such case unnecessary.
    1. Exceptions to unnecessary proof.—Even if good, not cause for reversal.
    (6) Death of the principal in the bond.
    1. Evidence of, as against the surety and his executor, sufficient to establish the jurisdictional fact of death,
    
    1. The admission of the surety, and the fact that he acted and led others to act as if the death had occurred, is sufficient.
    (c) Bond approved of by surrogate.
    1. Not necessary, to render it obligatory on the surety.
    1. It is required for the benefit of creditors and distributees, who may waive it.
    (d) Demand for payment of decree.
    1. Not necessary.
    
    (e) Sureties’ death, defaults after.
    1. Sureties are liable for.
    
    (/) Decree.—Error in amount directed to be paid,
    EFFECT OF.
    1. Will not preclude a recovery for the correct amount.
    H. SURROGATE’S DECREE FOR PAYMENT.
    1. Void or inoperative, not rendered so by.
    1. Error in amount directed to be paid.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.
    
      Decided March 3, 1879.
    Exceptions ordered to be heard in the first instance at general term, the court having directed a verdict for plaintiff. The facts sufficiently appear in the opinion.
    
      
      Hall & McMahon, attorneys, and Elial F. Hall, ■ of counsel, for plaintiff, on the questions considered by the court, argued:
    I. A formal order of approval is not required by the law or the practice; the approval is sufficiently shown by the acceptance of the bond, the filing of it, and the issuing of the letters. If the surrogate did not perform his duty in this particular, the onus was upon the defendant to show it (Mandeville v. Reynolds, 68 N. Y. 534; Dayton v. Johnson, 69 Id. 419). “It would be strange indeed if the sureties in an administration bond, after enabling their principal to possess himself of the personal estate by its execution, should be permitted to avoid its obligation, upon the plea that the officer granting the letters and receiving the bond had no jurisdiction of the subject matter. The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction in any proceedings for the assets which the appointment and bond have enabled the principal to receive” (People v. Falconer, 2 Sandf. 83, approved in Fake v. Whipple, 39 N. Y. 394).
    II. The objection that there was nothing on the face of the decree for payment, to show that the surrogate had acquired any jurisdiction, was unfounded and false. The recitals in the decree show the application of the plaintiff to the surrogate, the issuing of a citation to the administrator, and his appearance before the surrogate by his attorneys, Cornell, McCullough & McDonald, in obedience to the citation. “ The recitals in a surrogate’s decree, which are full as to all jurisdictional matters, are. prima facie evidence of “its validity when the question arises in a collateral matter” (Rowe v. Parsons, 6 Hun, 338; Dayton v. Johnson, 69 N. Y. 425). “In the absence of fraud or collusion between the executor and the legatee, a decree of the surrogate directing payment to such legatee, is conclusive upon the sureties on the executor’s bond, and cannot be impeached in a collateral proceeding” (Schofield v. Churchill, Court of Appeals, February 19, 1878 ; from 6 N. Y. Weekly Dig. 195).
    III. The proceedings upon the surrogate’s decree, the making and filing of the certificate of the decree, the docketing of the certificate, the issuing of the execution thereon and the return of the same unsatisfied, the petition for assignment of the bond, and the order assigning the bond, were all perfectly regular, and in strict accordance with sections 63, 64 and 65, of chapter 460 of the laws of 1837, as amended by chapter 104 of the laws of 1844 (4 Edmonds' Statutes, 498). To obviate all questions as to the proper county, and following the precedent laid down in Rowe v. Parsons, (6 Hun, 338), a certificate was also filed and docketed in Kings county, and execution issued there. These statutory proceedings were all that was necessary to make the cause of action on the bond complete and perfect. “A demand, previous to the commencement of the suit, of the money directed by the decree to be paid, was not necessary. The statute does not make such a demand a condition precedent to the right to sue the bond of the administratrix” (People v. Rowland, 5 Barb. 453).
    IY. The surety is liable for defaults after his death. There is no analogy between a mercantile guaranty, revocable upon notice, and terminable, as has been held, by the death of the guarantor (except as to liabilities which accrued before his death), such as that in Harris v. Fawcett (15 L. R. Eq. Cas. 311), cited at the trial herein, and an administrator’s bond, in which the sureties, in express terms, “bind ourselves, our, and each of our heirs, executors and administrators.” Furthermore, the suretyship in this case is not terminable upon notice, at the will of the surety, but only upon the exercise of the judicial discretion of the surrogate, and after new sureties have qualified to his satisfaction.
    V. In the hurry of computing the interest at the close of the trial, it was computed for two or three hundred dollars too much. We consent that the error be corrected at the general term and the verdict modified accordingly.
    A. Q. Anderson, attorney, and John 8. Lawrence, of counsel, for defendant, on the questions considered by the court, argued:
    I. The justice erred in allowing the certified copy of the inventory to be introduced in evidence. There is no provision of law authorizing any copy of such a paper to be read in evidence. The original inventory is filed in the office of the surrogate, and was the only evidence of any appraisement that was admissible. The surrogate’s court being a court of limited jurisdiction, its certificates are not entitled to any credit, except when made pursuant to some statutory authority (People v. Barnes, 12 Wend. 492; Stilwell v. Carpenter, 2 Abb. New Cas. 268; Matter of Watson v. Nelson, 69 N. Y. 536).
    II. The bond was improperly received in evidence, and the exception thereto was well taken, (a) No approval is shown, either by any indorsement or writing of the surroga te upon the bond, or by any record, such as an order directing the bond to be taken with the persons named therein as sureties, (b) The approval of a judge or any judicial officer can only be shown in the manner suggested above. Even though the surrogate may have reached such approval in his mind, there should be evidence from which that fact could be determined (Burns v. Robinson, 1 Code R. 62 ; Seaman v. Ward, 1 Hilt. 52; Stephens v. Santee, 51 Barb. 532). (c) There is no presumption that the bond was approved (People v. Barnes, supra), (d) If there could be such presumption, it must be overcome when the bond being produced there is no approval on it. (e) If the surrogate had approved it, he is still alive, and could have been examined and the fact shown, if it was a fact. (/) The sureties had a right .to know if they were accepted. How could they know, if there was no record % (g) There is no order directing the bond to be filed. There is no file mark, nor any other evidence upon the bond that it was ever filed. The only evidence given was, that’it was in a book in the surrogate’s office. The letters do not show that any bond was given at all.
    III. The letters of administration upon the estate of John Mundorff were not properly shown. The original should have been produced, and the copy or record in the surrogate’s office was improperly admitted in evidence.
    IV. All the following papers, which were offered and received in evidence under defendant’s objection, which papers purport to have been issued or used in and about certain proceedings in the surrogate’s court, in the matter of the estate of John Mundorff, were improperly admitted. They are: Exhibit 1, Certified copy of letters of administration; Exhibit 2, Certified copy of inventory, copy letters of administration; Exhibit 9, Certified copy surrogate’s decree; Exhibit 16, Petition of plaintiff for assignment of bond; Exhibit 17, Order assigning bond; Exhibit 19, Petition of plaintiff, as a creditor; Exhibit 20, Citation for administrator to show cause; Exhibit 21, Consent to adjourn the proceedings with order for payment; Exhibit 22, Decree of surrogate of May 31, 1876; Exhibit 12, Execution to sheriff of ¡New York; Exhibit 13, Certificate of clerk of Kings county, of copy decree; Exhibit 14, Transcript of judgment of Kings county ; Exhibit 15, Execution to sheriff of Kings county. Each and all of these papers were objected to by the defendant, and received under his exception. 1. The surrogate had no jurisdiction to issue until a bond had been given and approved. 2. That certified copies could not be put in evidence. 3. The surrogate’s court being a court of limited jurisdiction, jurisdiction must be shown. There was nothing to show jurisdiction. 4. That the surrogate never approved any bond. 5. That they were for a greater amount than appeared to be due. 6. The decree of the surrogate, May 31, 1876, states that the plaintiff is entitled to $7,996.99, and interest on that amount from October 20, 1875, amounting to $340.53, which is $600 too much, besides the interest on said $600; and orders that the administrator pay that amount, viz., $8,337.52, for which excessive amount the transcripts and executions were issued. (a) There is no proof that John Mundorff died, or that any petition was ever presented to the surrogate for the appointment of an administrator. These proceedings were jurisdictional, and as the surrogate’s court is of limited jurisdiction, they should have been shown before the bond, or letters of administration, could be read in evidence.
    Y. So also the papers called the judgment roll, were improperly admitted, as they did not constitute a judgment; and also the reports of Ingraham and Kurtzman were improperly admitted.
    YI. The plaintiff based her right to take proceedings against the administrator upon this so-called judgment, and in her petition to the surrogate, stated that she had recovered a judgment against said administrator for $7,996.99. This amount was $600 in excess of what she was entitled to receive, as shown by the so-called judgment itself, and the decree of the surrogate was made on her claim for the exaggerated amount and interest on that amount. The administrator was not indebted in the amount claimed, and the decree of the surrogate could not bind his sureties, for the reason that it was founded on a demand for more than was actually due. A decree for default in complying with such demand, would not form the basis of a right of action against the surety. His rights are “ sirictissimi juris.”
    
    VII. It was also necessary for the plaintiff to show, before she could maintain the action, that a demand had been made upon Jacob Mundorff for the payment of the money required by the decree, and an omission of the administrator to comply with the decree (People v. Barnes, 12 Wend. 492 ; Brewster v. Baldi, 9 Jones & Spencer, 63). {a) But even if such demand had been proven in this case, it would not have availed the plaintiff, for the reason that the decree was, confessedly, for more than she was entitled, and a failure to pay that amount would not create such a default as would make the surety liable. (5) The administrator was not bound to pay the amount directed by the decree, for the plaintiff shows that it directed the payment of $600 too much, with interest thereon. (c) “ The sureties can only be made liable for the disobedience of the administrator to lawful orders of the surrogate” (Annett v. Kerr, Opinion of Robertson, Ch. J., 28 How. Pr. 329). (d) No demand is shown to have been made upon Mundorff, the administrator, for the amount of money in which he is how alleged to be in default, although this suit is to recover for his supposed disobedience of a decree of the surrogate to pay that amount. Nor can it be claimed that the sheriff's proceedings upon the execution upon the surrogate’s decree constituted a proper demand, because if there was no valid decree there could be no valid execution, and because demand for satisfaction of an execution for $600 more than was unpaid, as plaintiff himself has proven, besides interest on such erroneous amount, cannot be a demand for some other amount which may be the proper amount.
    VIII. The alleged default by Jacob Mundorff, which is the basis of this action, occurred, if at all, in 1876, six years after the death of James Moore (the defendant’s testator), and upon the death of Moore his liability as surety terminated, and for defaults occurring thereafter his estate, or the defendant as his executor, cannot be made liable, Moore was only a surety—sureties are always favored. The contract is one of beneficence, not of mutual interest. 1. The rule stated by Williams, is that, “If a man enters into a continuing guaranty and dies, his executor, it has been thought, is not liable upon it for advances made after the testator’s death, which operates as a revocation” (3 Williams on Executors, 7 ed. 1869). “The death of the surety is perhaps a revocation of the guaranty” (De Colyer on Guarantees, &c., Amer. ed. 422). The rule is stated by Smith, in speaking of “ Surety, how discharged“ It is said by Mr. Starkie to have been decided that a continuing guaranty is countermandable by parol. And the executor, it seems, is not liable in respect of advances made after the testator’s death, which operates as a revocation” (Smith on Mercantile Law, 286 ; Hande v. Craighead, 67 N. Y. 432). 2. The Revised Statutes, sections 66, 67, 68, 69, provide for a surety’s procuring his release from responsibility for future acts of his principal, by compelling him to give a new surety in his place, or in default thereof procuring a revocation of his letters. 3. The liability of the sureties upon the bond must be considered as though the words of the statute in respect to the obligation, its effect and revocation, were contained in the bond itself. 4. This surety died in 1870,- and of course, could not very well apply to be relieved from his liability, which did not occur until 1875. The defendant claims that death revokes the obligation of a surety on an administration bond. In all cases where liability is terminable by notice, the surety is discharged by death. It cannot be that in respect- to a surety the liability is to be continued, for acts which transpire long after the surety ‘has passed out of existence (Jordan, et at. v. Dobbins, Administrator, 122 Mass. 168; Harris v. Fawcett, 15 Law Rep. Eq. Cas. 311; 8 Affirmed Law Rep. Chan. App. 866). 5. The defendant had no notice of any claim until June 15, 1877.
   By the Court.—Sedgwick, J.

James Moore, the testator of defendants, and another, as sureties, with Jacob Mundorff, as principal, made their joint and several bond, upon condition “ that if the above bounden Jacob Mundorff,” shall faithfully execute the trust reposed in him as administrator, &c., &c., of John Mundorff, late of the city of New York, deceased, and obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to him, then this obligation to be void, &c.

In 1870, the surety, James Moore, died.

In 1876, an order was made by the surrogate, that Jacob Mundorff, the administrator, forthwith pay to the plaintiff in this action the sum of $7,996.99, together with costs, amounting in all to. $8,337.52.

The bond, the original petition of plaintiff, citation, decree or order, were produced upon the trial, from the surrogate’s office.

The recitals in the order stated facts sufficient to show that the surrogate was proceeding within his jurisdiction. It was proved that the. administrator had “omitted” to perforin the decree (§ 23, c. 320, L. 1830), that the surrogate’s certificate under the decree was duly docketed by the clerk of the county, that execution was duly issued and returned unsatisfied, and that the surrogate had assigned the bond given by the administrator (2 Edm. R. 8. §§ 63, 64, 65, p. 498). The plaintiff therefore proved a breach of the condition that the administrator would obey all orders of the surrogate, and a due assignment of the bond. This was enough to sustain the action, and required that the judge should direct a verdict for the plaintiff (Brewster v. Balch, 41 N. Y. Super. Ct. 69 ; Dayton v. Johnson, 69 N. Y. 419).

The plaintiff upon the trial unnecessarily proceeded to establish the validity of the claim made in the petition, by producing records tending to prove that the plaintiff had procured judgment against the administrator, and to re-enforce the presumption of jurisdiction, by giving evidence of the filing of inventory, &c. Many objections were taken on the trial to the proofs here alluded to. It is not profitable to notice them all in detail, inasmuch as if the matters were all out of the case, the court would have been bound to make the direction he did.

It is specially objected, that it did not appear that John Mundorff had died, nor therefore that the surrogate had jurisdiction of the administration of his estate. If there were not a presumption that he had died, it would be sufficient proof by admission of defendant’s testator, that he acted and led others to act as if the death had occurred.

It is further argued that the obligation of the bond is not shown, until it is also proved that the surrogate, as directed by statute, approved it, and there was no such proof. The provision as to approval was not made for the benefit or protection of the administrator or sureties, but of creditors and distributees. If the latter do not require it, but waive their right or omit to object, the former cannot rest upon what is in the nature of an objection to their own acts.

It appeared that the order of the surrogate directed the payment of an amount greater than was really due to the petitioner, and in fact the order followed the judgment that had been obtained against the administrator. The plaintiff did not ask that the decree be enforced as to the error, but asked that a proper deduction be made. Indeed, the plaintiff, recognizing the error, had before trial acquiesced by stipulation, in a proper reduction of the judgment. Strictly, the decree of the surrogate was a final adjudication as to the amount of the judgment. It proceeded upon an allegation of the petition, that a judgment had been obtained, and an adjudication as to the existence. and amount of the judgment was directly involved in the proceeding. But under any circumstances, it would not be proper to consider the decree void or inoperative, for such an error. If all the proceedings were taken together, they furnished a correction of what was an error of computation, and it could be deemed corrected..

It is objected that a demand for the payment of the decree should have been made xipon the administrator. This was not necessary, for an omission by the administrator to perform the decree rendered the surety liable, by the act of 1830 (c. 320, § 23), and by section 65, chapter 460, 'Laws of 1837, the return of the execution unsatisfied gives the creditor a right to an assignment of the bond.

I do not see any ground for the proposition that the surety’s liability upon the bond did not extend to defaults after his death. It was not revocable at his will; the intent of the contract covered defaults after death, not only because of the nature of the subject matter, but because also he expressly bound his executors and administrators.

There shoxxld be a correction of the error of calculation in the amount of the verdict, viz., $200.

The exceptions of defendants are overruled, and judgment for plaintiff on the direction of the court, is ordered, with costs to plaintiff, but such costs are to abide the future direction of the court, at special term, as to the costs of the action.

Freedman, J., concurred.  