
    
      W. S. Jeffries and wife v. Mary V. Lawson.
    1. Executor and administrator: making joint bond, each liable for the other. — The execution of a joint administration bond by two administrators renders each of them liable for the faithful performance of the duty of his associate as well as of himself; and hence, though one of the administrators may have.received all of the assets and conducted the entire administration of the estate, the other is liable to account. See Boyd v. Boyd, 1 Watts, 365; Still’s Appeal, 10 Penna. S. R. (Barr) 153 ; Ch’eenr. Hm-berry, 3 Brock. 403 ; Lidderdale v. Bobinson, Id. 159; Babcoclc v. Subbwd, 3 Conn. R. 536.’
    3. Same': effect of acknowledgment of liability for acts of administrator, when made by a lawyer. — When a positive and absolute acknowledgment of liability for the acts of his co-administrator is made by one cognizant of all the facts, and entirely competent to forman opinion as to the extent of his liability, (as by a lawyer of eminence,) the acknowledgment is conclusive, unless it be shown affirmatively that it was founded on mistake.
    Appeal from the Court of Probates of Warren County. Hon. L. S. Houghton, judge.
    
      
      Nye and Sill, for appellants,
    Cited Lidderdale v. Robinson, 2 Brock. C. C. R. 160; Johnson v. Johnson, 2 Hill, (S. C.,) Ch. R. 293; Green v. Sarberry, 2 Brock. 403 ; Fonte v. Norton, 36 Miss. R. 365.
    They also cited and commented on Nolan v. Oalvert, 12 S. & M. 273, and same case reported as Gaultney v. Nolan, 36 Miss. R. 569, to show that these last decisions were made with reference to the hypothesis that the administration bonds were separate and not joint.
    
      George Fearne and George L. Potter, for appellee.
    No memorandum of their argument has come to the possession of the Reporter.
   Handy, J.,

delivered the opinion of the court:

This was a petition filed in the Court of Probates by the appellants as distributees of the estate of Walter R. Puckett, to compel the appellee to settle the account of her testator, Hugh A. Lawson, who was joint administrator with one Tompkins of the estate of Puckett.

The answer of the appellee states in substance, that the entire charge and management of the business of the administration was in the hajrds of Tompkins, who received all the property and money belonging to the estate, has made all the settlements with the court and has received all the compensation; and insists that the estate of Lawson is not liable to account.

It appears from the record that administration was granted to Tompkins and Lawson, who executed a joint and several bond with sureties, and returned an appraisement of the estate in the name of both, though the signatures were by Tompkins; that a joint report of sales of personalty was made, but sworn to only by Tompkins; that two annual accounts were returned in the names of both, one of which was signed by Tompkins for both, and the other for himself alone; that a petition was filed by them in their joint names, praying for the sale of the real estate for the benefit of the heirs; and a joint bond executed by them thereupon, and a joint report of sale.

It was proved by the probate clerk that, during the period of the administration, Lawson came into tbe clerk’s office witb another distributee of tbe estate, and took out all tbe papers, annual accounts, &c., pertaining to tbe estate, and examined them witb that distributee, who was about making a settlement witb tbe administrators. It further appeared by tbe testimony of one Bedford, tbe administrator of Tompkins, that after tbe death of Tompkins, Lawson bad several interviews witb tbe witness in reference to tbe affairs of Puckett’s estate and bis connection witb it, and repeatedly admitted bis liability thereon as administrator; and on one occasion that witness went witb Lawson to see one of tbe sureties on tbe administration bond of Tompkins and Lawson, who had become uneasy on account of bis liability, after Tompkins’ death; and that Lawson assured tbe surety that be bad no ground of alarm as be, Lawson, was responsible for all tbe acts of Tompkins — that Lawson bad prepared a final account to be' rendered in 1859, but it was never-rendered to tbe court.

It further appeared that all tbe signatures of Lawson to papers offered in evidence and pertaining to tbe administration of Puckett’s estate were in tbe bandwriting of Tompkins, except a power of attorney executed by Lawson, authorizing Tompkins to apply for and obtain letters of administration in bis name and to execute tbe necessary bond for him, and a letter of Lawson to Tompkins to tbe same effect, and another power of attorney authorizing T. A. Marshall or Tompkins to sign bis name to the bond given on obtaining tbe order to sell tbe real estate.

On tbe bearing tbe court dismissed tbe petition, and thereupon this appeal was taken.

Tbe first question presented for consideration is, whether, from tbe nature of tbe obligation and duty devolving upon tbe two administrators from their execution of a joint bond, Lawson is not responsible for tbe acts of bis co-administrator, though it be conceded that Tompkins received tbe whole of tbe assets and conducted tbe entire administration of tbe estate.

In support of tbe decree of tbe court below, a class of cases is relied on in behalf of tbe appellee, which bold that one executor or administrator is not liable for assets which have come to tbe bands of his co-executor or administrator and been wasted, by tbe mere fact that an inventory in their joint names has been returned; or that joining in a receipt with the co-executor is not conclusive upon the other that he has received the money; and that an executor will not, under ordinary circumstances, be responsible for assets which came to the hands of his co-executor; or for his receipt, merely by taking probate, permitting him to possess assets, and joining in acts necessary to enable him to administer. Hall v. Carter, 8 Ga. R. 388; Kerr v. Waters, 19 Id. 136; Ochiltree v. Wright, 1 Dev. & Bat. Eq. 336; Hovey v. Blakeman, 4 Vesey, 596. And it is contended that, under the rules held in these and similar cases, none of the acts of Lawson in the administration- in question create a liability on his part for the assets which are shown’to have come exclusively into the hands of Tompkins. But it may be well questioned whether any of these cases would extend the rule of exemption to accounts returned, in the joint names of him and Tompkins, with his sanction or acquiescence.

In these cases it does not appear whether the executors executed a joint bond, or whether each stood upon his own separate responsibility — a consideration very materially affecting their mutual liability for their acts. But here there is a joint bond, by which each covenants and binds himself that they will both well and faithfully administer the estate. This is the plain obligation, and it is difficult to perceive how any other construction can be given to it than that each becomes bound not' only for himself, but that his associate shall faithfully perform his duty. If either fails, the obligation is broken. If this were not so, what would be the condition of the sureties, in case of a receipt and squandering of the assets by one of the executors who is insolvent, without the knowledge or participation of the other ? Each executor has come under the implied obligation to the sureties that they will both faithfully administer the estate. In case of a recovery against the sureties for a devastavit committed by one of them, who might be insolvent, but without the participation of the other, could it for a moment be doubted that the sureties could maintain an action against both of them to recover money paid on such judgment ? Surely not; for both were under an implied obligation to indemnify the sureties for loss which they might sustain by the unfaithful administration of’either. But what is matter of mere implied contract with the sureties is matter of express obligation to the obligee of the bond, which by its very terms covenants that they as joint administrators will faithfully administer the estate. It appears to be a manifest perversion of the obligation to put any other construction upon it' than that each administrator guarantees the faithful performance of the duty of his associate as well as that of himself.

This view is well sustained by authority. Boyd v. Boyd, 1 Watts, 365; Still's Appeal, 10 Penna. S. R. (Barr) 152; Green v. Harberry, 2 Brock. 403; Lidderdale v. Robinson, Id. 159; Babcock v. Hubbard, (cited in Boyd v. Boyd, supra,) 2 Conn. R. 536. And we are satisfied that it is sustained by reasons of justice and sound public policy, in promoting faithfulness in discharging the duties of these important trusts.

But, in addition to this, the evidence in this case very satisfactorily shows that Lawson was responsible for the assets of the estate. He is shown repeatedly to have admitted Ms liability for all the acts of his co-administrator; and that certainly is sufficient to charge him in the absence of any evidence tending to show that his statements were founded in mistake. It appears that he examined the papers and accounts pertaining to the estate, and was a lawyer of distinction. He must, therefore, have known the force of his statements, and it must be presumed that they were made on a state of facts that would justify the admission. It will not do to say that this was mere matter of opinion; for the admissions were made by one competent to form a correct opinion, and cognizant of the true state of facts; and the acknowledgment being positive and absolute, we are authorized to presume the existence of any state of facts in relation to the receipt and use of the assets of the estate, either by himself or by Tompkins with his privity and sanction, which would render him liable.

On both of these grounds we are satisfied that the court erred in dismissing the petition, and are of opinion that the account should have been ordered as prayed for.

The decree is, therefore, reversed, and the case remanded, and an account ordered to be taken in the court below, according to the prayer of the petition.

A petition for a reargument was filed, but overruled.  