
    HENRY BREWSTER, Plaintiff and Respondent, v. EBENEZER H. BALCH, Defendant and Appellant.
    I. SURETY.
    1. Instrument, joint and several, executed by, construction of, as against him.
    
      (a) Saíne rules obtain as against the principal.
    
    1. Rules of construction.
    1. The situation of the parties, and the hazards against which the security was exacted, must be considered.
    H. ADMINISTRATOR’S BOND.
    1. Construction of.
    1. On the appointment of Mary Cooley, administratrix, and Charles H. Davis, administrator, they executed a bond, with two sureties conditioned that “the above bounden M. C. and C. H. D. shall faithfully execute the trust reposed in her as administratrix and administrator of all and singular the goods,” &c., “of H. 0., deceased, and obey all orders of the surrogate, touching the administration of the estate committed to her."
    
    
      (a) Question. Is defendant (one of the sureties) liable for a devastavit committed by 0. H. D., or for his disobedience of an order of the surrogate.
    
      Held,
    
    that he was—
    1. In view of the statute requiring security it must be deemed that the parties intended that the obligees, both principals and sureties, should be responsible for the faithful execution by both administrator and administratrix of the trust reposed in them,.
    
    3. The insertion of the name, O. H. I)., and of the words, “ as administrator," show that it was the design of the parties to become responsible for the faithful execution by 0. H. D., as well as by M. 0., of the designated trusts. The trust designated was‘‘the administration of the estate of H. C.
    (a) The phrases, “reposed in her,” “committed to her,” are unnecessary words of description, and, if false or erroneous, might properly be omitted.
    Before Speir and Sanford, JJ.
    
      Decided March 20, 1876.
    (5) But they are neither false nor erroneous. The trust was reposed in M. 0., and none the less so because it was also reposed in 0. H. D.
    3. Bbeach of, what constitutes.
    1. A refusal by an administrator to obey a surrogate’s order requiring him to malee a certain payment out of assets found and decreed to be in his hands, constitutes a breach.
    
      (a) This, although there has been no accounting by his co-administrator, nor any application therefor, and although the accounting on which the order was made was on the application of his co-administrator.
    
    3. P abites to action on.
    I. Plaintiff.
    
    
      The creditor to whom the surrogate directs payment to be made, may proceed against the sureties upon the administrator’s refusal to pay, and an assignment of the bond.
    
    Appeal from a judgment.
    The facts appear in the opinion.
    
      James Ridgeway, attorney, and W. W. Mann, of counsel for appellant, urged :
    I. The plaintiff has no right to maintain this action, even though the bond be held good in form and substance. The bond was executed to the people of the State of New York, who alone have the right to prosecute it. The surrogate had no power to assign the bond to the plaintiff, as alleged in the complaint, and any such order made by the surrogate was absolutely void, and gave no title to the plaintiff (Banks’ 5 Ed. 2 Rev. Stat. p. 120, § 19, and Latos 1830, chap. 320, § 19).
    II. The provisions of the Code requiring actions to be brought in the name of the party in interest, does not help the plaintiff. The order, as made by the surrogate, was, as stated in the complaint, that Davis pay three hundred dollars, viz : one hundred and fifty dollars to the plaintiff in the proceeding before the surrogate, and one hundred and fifty dollars for auditor’s fees. There is no allegation of any assignment of auditor’s fees to the plaintiff, nor will this provision apply to a statutory bond like the one in suit.
    III. Mary Cooley was administratrix jointly with Charles H. Davis as administrator. There was no order of the surrogate requiring her to account, nor is there any account, except inferentially that she did not participate in the administration. She should have been called upon to account, for non constat tliere was sufficient funds in her hands to have paid auditor’s fees and proctor’s fees, and the surrogate had no power or authority to make an ex-parte order, requiring one of the administrators to account and pay it. The order to account should have been against both.
    IV. The bond upon which this action is based was a bond for the performance of the duties of Mary Cooley, as administratrix of the goods and chattels which were of Horace Cooley, deceased.' la the language of the bond, the estate was committed to her, and to her only, and this court has no right to imply any engagements not named in the bond as against this defendant, who was simply surety and nothing more. The rule of construction in favor of a surety excludes implied engagements, and calls for exact performances of express stipulations (Rochester City Bank v. Elwood, 21 N. Y. 88; Ludlow v. Simond, 2 Caines Cases, 1 ; Walsh v. Bailie, 10 Johns. 180 ; Miller v. Stewart, 9 Wheaton, 680; Field v. Rawlins, 1 Gilman, 581).
    V. If we are met by the allegation that the present condition of the bond is the result of a mere clerical error, we reply that an action should have been brought, if such was the fact, to reform the contract. Non constat defendant executed the bond upon the lull understanding that Mary Cooley would be the acting administratrix, and while under such an agreement he was willing to become her surety ; he would not if Davis was to be the acting administrator. The judgment should be reversed, absolutely, with costs to defendant.
    
      H. Brewster, attorney, and of counsel for respondent, urged :
    I. The appellant signed as surety for Charles H. Davis as well as for Mary Cooley, and the parties bind themselves jointly and severally in the penal part of the bond. And this provision as to its being joint and several, runs all through the bond, and applies to the condition as well (Kirby v. Turner, Hopkins, 309 ; Negley v. Gard, 20 Ohio, 310).
    II. An action will lie on a several accounting of one administrator (People v. Downing and others, 4 Sandf. S. C. 189; 7 Johns. Ch. 17; Dayton on Surrogates, 2 Ed. 484, 485).
    III. The bond was objected as insufficient to reach this case because the condition states the trust reposed in her, instead of them, and again the estate committed to her. This was a mere clerical slip in filling up a blank. By what is in the condition without this, the sense is plain. The intent is to govern in all cases. This rule applies to sureties as well as all other parties (Chit. on Contracts, 517; Relloni v. Freeborn, Court of Appeals, Dec. 1875, reported Albany Law Jour. Jan. 22, 1876, p. 62). Where enough is left falsity will not hurt (Burr v. Broadway Ins. Co., 16 N. Y. 267 ; Caroni v. Jerome, 58 Id. 315). This last case was on an administrator’s bond.
    IY. Although the previous points appear to me to cover the entire case, it may be proper to suggest that no objection can now be taken as to parties (Depuy v. Strong, 4 Abb. Pr. N. S. 340 ; O’Connor v. Such, 9 Bos. 318). That the mode of proceeding in this case was correct (Laws of 1837, p. 535, §§ 63, 64, 65 ; Laws of 1844, p. 91, § 2). The bond was properly assigned (Baggott v. Boulger, 2 Duer, 160).
   By the Court.—Sanford, J.

Charles H. Davis and Mary Cooley were appointed administrator and administratrix of Horace Cooley, deceased, and letters of administration were issued to them, by the surrogate of the county of Hew York, upon the execution by them and their sureties of the bond or obligation upon which this action is brought. The condition of the bond is that the above bounden Mary Cooley and Charles H. Davis shall faithfully execute the trust reposed in her, as administratrix and administrator of all and' singular the goods, chattels, and credits of Horace Cooley, late of the city of Hew York, deceased, and obey all orders of the surrogate, touching the administration of the estate committed to her. It is insisted, on behalf of the defendant Balch, one of the sureties on the bond, that, as against him as such surety, the bond must be strictly construed, and that upon a strict construction, he can not be held liable for a devastavit committed by Davis, nor for Davis’s disobedience of the order of the surrogate requiring the payment of a sum of money to the plaintiff, out of assets decreed to be in his hands as administrator of the estate.

1. The liability of principals and sureties upon a joint and several obligation is determined upon the same rules of construction ; and, with respect to both, the situation of the parties, and the hazards against which the security was exacted, must be considered in determining the legal effect of the instrument (Rochester City Bank v. Elwood, 21 N. Y. 88). If, therefore, Davis is liable upon the bond, so also is Balch. The statute requires that “ every .person appointed administrator shall before receiving letters, execute a bond with two or more competent sureties, to be approved by the surrogate ; and the bond shall be conditioned that such administrator shall faithfully execute the trust reposed in him as such, and also that he shall obey all orders of such surrogate touching the administration of the estate committed to him ” (2 R. S. 77). The intention of the parties, in view of the statutory requirement, doubtless was that the bond should be, and should be deemed and taken to be, a full compliance therewith ; and that the obligors, both principals and sureties, should become and be responsible for the faithful performance by both administrator and administratrix of the trust reposed in them. To suppose otherwise would involve the implication of an intended evasion of, and fraud upon the law. No such evasion and fraud is to be presumed, as within the contemplation of either or any of the parties. The honest intent is not only to be presumed, but is, I think, fairly manifested by the terms of the instrument, without the slightest change, by construction, of its peculiar phraseology ; and especially, if its phraseology is considered in connection with the statute. If there be any failure to express such intent, it was, in all probability, occasioned by a mere clerical error in the filling up of a blank. But I am of opinion that the language used sufficiently expresses such intent. Had the name of “Charles H. Davis” and the words, “as administrator,” been wholly omitted from the condition of the bond, there might, consistently with an honest purpose and intent on the part of the parties, have been ground for the construction contended for by the defendant Balch ; but it is impossible to give any force or sig nificance to the insertion of that name and those words, without assuming that the design and purpose of the parties was to become responsible for the faithful execution by Davis as well as by Mary Cooley of the designated trust. That trust was the administration of tiie estate of Horace Cooley, as appears by the express terms of the instrument; and the words “reposed in her,” and “ committed to her,” are but additional and unnecessary words of description which do no harm, and which, even if wholly erroneous and false, might properly be rejected, inasmuch as the trust intended to be described is otherwise designated with certainty. If the intent is clear, the mistake is to be disregarded, and no reformation of the instrument by an appeal to the equitable power and jurisdiction of the court, is requisite. 6‘ Falso demonslratio non nooeV'1 (Burr v. Broadway Ins. Co., 16 N. Y. 267). But those words are not false nor erroneous, and it is quite unnecessary to reject them. As matter of fact, the trust was reposed in Mary Cooley; and none the less because it was also reposed in Davis. H"or was he the less bound to execute that trust, reposed also in him, because in the condition of the bond it was described as reposed in her. The condition was that both should faithfully execute that trust, and it was for its faithful execution by “Davis ” as “ administrator,” as well as by “ Mary Cooley as administratrix,” that the sureties, in express terms, became bound.

2. The failure of Davis to comply with the order of the surrogate requiring payment to the plaintiff out of the assets found and decreed to be in his hands, constituted a breach of the condition of the bond, quite irrespective of any accounting by Mary Cooley, or any application therefor. He was called to account upon her application, as he well might be, and was held liable upon an accounting to which she was a party. The creditor of the estate to whom, by the order of the surrogate, he was directed to make payment, had the right to proceed against his sureties upon his refusal, and an assignment of the bond.

The judgment should be affirmed with costs of the appeal.

Spier, J., concurred.  