
    Case 46 — PETITION EQUITY
    May 12.
    Wilson, guardian, &c. v. Unselt’s adm’r, &c.
    APPEAL FROM HENDERSON COMMON PLEAS COURT.
    1. An administrator is not a COMPETENT-witness against the infant children OF HIS intestate in an action by them by guardian or next friend against him to recover rents which he had collected for lands leased by him which had descended to them.
    2. The surety in an administrator’s bond is not liable for rents collected by him for lands belonging to his intestate taken possession of and leased by him as administrator, which descended to the heirs of his intestate at his death.
    3. The word “rents” in the covenants of the bond of an administrator, as required by the Revised and General Statutes, does not apply to or make the surety in the bond liable for rents of land leased by the administrator and collected by him after the death of his intestate.
    4. The word “rents” in the bond of an administrator is intended to apply to and embrace only such rents as at the death of an intestate passed to his personal representative and not to his heirs.
    5. The surety in the administrator’s bond is liable far such rents as were due the intestate at his death or were collected by the administrator upon a contract made by his intestate which passed into the hands of the administrator.
    
      6. An action should be in the name oe the infant, by Ms guardian, and not in tbe name of the guardian for the infant.
    R. H. Cunningham,.......For Appellants,
    CITED
    Revised Statutes, chap. 37, art. 2, see. 9.
    General Statutes, chap. 39, art. 2, sec. 9.
    General Statutes, chap. 37, secs. 22, 23, 25.
    6Mon. 596, Williamson’s adm’x v. Richardson.
    2 Dana, 54, O’Bannon v. Roberts’s heirs.
    4 Dana, 547, Combs’s devisees v. Branch.
    6 B. Mon. 86, Atchison’s heirs v. Lindsey, &c.
    8 Bush, 68, Rank v. Hill’s adm’r.
    6 Bush, 510, Heeter v. Jewell.
    7 B. Mon. 21, Smith v. Bland.
    9 Bush, 720, Booth’s ex’rs v. Vanarsdale.
    6 Mon. 617, Lampton v. Lampton’s ex’r.
    2 J. J. Mar. 497, Dickerson v. Wilson.
    6 J. J. Mar. 53, Higdon v. Higdon.
    1 Statute Laws, page 663.
    1 Greenleaf’s Evidence, sec. 347.
    Malcolm Yeaman,........For Appellees,
    CITED
    M. & B.’s Statute Laws, 663.
    Revised Statutes, 1 Stanton, 504.
    7 B. Mon. 21, Smith v. Bland.
    8 Bush, 67, Rank v. Hill’s adm’r.
    2 Bush, 429, Taylor v. Young’s adm’r.
   JUDGE PRYOR

delivered the opinion of the court.

George M. Priest, by an order of the Henderson County Court, was appointed administrator de bonis non of the goods, etc., of David Unselt, deceased, and as such executed the bond required by law with Isaac Sheffer, his surety. The intestate was the owner at his death of two houses and lots in the city of Henderson that were taken possession of by Priest, the administrator, and rented out for several years. The infant children of Unselt, by their guardian, W. H. Wilson, instituted this action against Priest, the administrator, and R. T. Walton, the administrator of Sheffer, who was the surety of Priest, to recover the rents collected by the latter, alleging the collection by him of a large sum of money from the rents of this real estate, and his failure to pay the same to the guardian or those entitled.

It is evident that the report of the commissioner is based to some extent upon the testimony of Priest, the administrator, and the question arises, is he a competent witness against the appellants, who are both infants ?

Section 22'of the chapter on Evidence, General Statutes, page 413, provides that “No person shall be disqualified as a witness, in any civil action or special proceeding, by reason of his interest,” etc.

Section 25 provides that “ No party shall be allowed to testify by virtue of section 22 in any action or special proceeding where the adverse party is deaf and dumb, or an infant, unless the infant testifies in his own behalf,” etc.

Subsection 1 of section 25 provides that “In actions or special proceedings with the executor, administrator, guardian, or trustee of infants, heir, or devisee, as above specified, a party may testify to facts which occurred after the death of the decedent or parent.”

It is insisted that under this subsection the administrator (Priest) is a competent witness, the facts about which he testified having transpired since the death of Unselt, the father of the infants. This position might be maintained in the event the litigation was with the guardian in behalf of the infants in relation to transactions originating between the party called on to testify and the decedent, or growing out of matters connected with the settlement of the estate of the intestate, or in a case where the guardian was seeking to recover by reason of a contract made by him for the infantsi

It is true the claim of the infants originated after the death of their father, but it has no connection whatever with any transaction between the decedent and the administrator, nor does it relate to any claim that the intestate in his lifetime could have asserted against Priest, the witness. The houses and lots descended to the infants, and the liability to pay the rents collected by the administrator was primarily to the infants, and never existed until after the father’s death. These rents constituted no part of the intestate’s estate in the hands of the administrator, but belonged to the infants; and the administrator, instead of collecting the profits or rents from the realty of the intestate, was collecting rents from the lands of the infants.

At the time this rent accrued the infants had no guardian, and the fact that the liability to the infants originated after the death of the parent does not make the adverse party a competent witness. This right to testify must arise from some right asserted by the guardian or representative of the infant, or claim against him growing out of liabilities or transactions between the adverse party and the parent of the infant or those from whom the right of the infant is derived or the responsibility assumed. Where the transaction is with the guardian or trustee of the infant, or where the facts transpire after the death of the infant, in a controversy with the personal representative, guardian, or trustee, in such cases the adverse party under the statute would be a competent witness. If the construction is given the statute as is maintained should be by the appellee in all cases where the parent dies before the infant, the adverse party to the infant would be allowed to testify. Such a construction does violence to the meaning and intention of the law-making power in enacting the 25th section of the act in question.

The appeal has been prosecuted in this case by the infants or their guardian for the reason that the testimony of Priest, the administrator, was incompetent as against them. As the testimony of Priest should have been excluded, and the judgment on that account must be reversed, it becomes necessary to determine the liability of the surety for the rents collected by the administrator. If the surety is not liable for the rent, the reversal of the judgment by which Priest’s testimony is to be excluded ought not to increase the surety’s responsibility or authorize the judgment against him.

There is now a joint judgment against the administrator and surety. No appeal has been prosecuted by the surety or cross-appeal prayed, except in the brief. The motion for a cross-appeal should have been made in open court and before the cause was submitted. A demurrer, however, was filed by Walton, the administrator of the surety, to the petition and overruled; and counsel having argued this point in their briefs, and as the case must go back for further preparation, it is proper to determine the liability of the surety.

At the common law, if the landlord died before the rent became due it passed to the heir, but if payable at his death it passed to his personal representative as part of the personal estate. The administrator had no right to take charge of or control the realty; and if he did so, while his own liability can not be questioned, the surety on the administration bond is not liable, for the reason that the rents were not assets that, as administrator, he had the right to receive. (Smith v. Bland, 7 B. Monroe, page 21; 3 Kent, 580.)

The bond given by an administrator under the provisions of the Revised Statutes, in force when this liability on the part of Priest originated, differs to some extent from the bond required prior to their adoption. One of the stipulations of the bond in this case is that “the administrator will well and truly make a proper distribution of any surplus money, effects, and rents which may come to his hands, or to any one for him by color of his office, to the person entitled thereto.” A bond with a similar covenant is required to be executed by the provisions of the General Statutes.

It is argued by counsel for the appellant that the covenant of the administrator requiring him to account for rents, etc., makes his surety liable for the rents of the land leased by the administrator, and collected by him after the death of his intestate.

The following enactments are to be found in both the General and Revised Statutes. Section 26 of the Revised Statutes (page 507) provides that “an estate held by a deceased person for the life of another shall go to the personal representative of the deceased and be assets in his hands, and be applied and distributed as personal estate.” Section 30 of the same chapter provides that when a person who has a freehold or other uncertain estate in lands, shall rent out the land and die before the rent becomes due, the rent of the land shall be apportioned between the personal representative of the deceased and the person who shall succeed to the land as heir, etc., unless in case of a devisee the will shall otherwise direct.

These enactments changed the common-law rule as to what constituted assets in the hands of an administrator. But neither of these sections makes the surety of an administrator liable for moneys, choses in action, or rents that did not belong to the intestate.

The personal representative being entitled to all the rent when his intestate held an estate for the life of another, and to an apportionment of the rent between him and the heir, or those entitled, when the owner of the fee or freehold had rented out the land and died before the rent became due, it was doubtless thought necessary to insert a stipulation in the bond requiring the personal representative to account for rents, in order to conform to the provisions of the statute making rents in certain cases assets to be administered by the personal representative, and for the additional reason that prior to these enactments this court had always held that the surety was not bound for rents collected by the administrator accruing after the death of his intestate.

The statute of 1797, it is true, required an apportionment of the rent between the personal representative and the heir; still the Revised Statutes enlarged the rights of the administrator over the real estate of his intestate by making an estate held by the decedent for the life of another, assets in his hands, althohgh the intestate left children or heirs surviving him.

It 'may also be argued that when the intestate holds the obligation of the tenant for rent, and dies before it falls due, that such a writing passing into the custody of the administrator, like any other chose in action belonging to the intestate, if collected by him is to be regarded as assets in his hands, for which his surety would be liable; and with this view the word rents may have been inserted in the bond.

It is not necessary, however, to determine what influenced the legislature in prescribing the present form of the bond to be executed by an administrator. It could not have been intended that the word rents inserted in the bond should make the surety liable for rents accruing to the administrator by reason of his contracts made with the tenant after the death of his intestate. The words moneys and effects are used in the same covenant, and it will scarcely be insisted that the sureties are to be held liable for all the moneys and effects the administrator may get hold of that of right belonged to the heir ■ during the continuance of his administration.

. If the surety is made liable, in that case it must be adjudged that this special covenant has changed the whole doctrine of liability on the part of sureties to such instruments. A bond containing the stipulation only that the administrator zoould toell and truly administer the goods, chattels, credits, and effects of the intestate according to law, and distribute any surplus assets to the distributee, or those entitled, which may come to his hands by color of his office, would impose on the surety the same liability that he now assumes when signing the bond prescribed by the statute.

In attempting to charge the surety with the moneys, effects, and rents the inquiry at once arises, what effects and rents is the surety liable for? The stipulations of the bond do not determine this question, and the only mode of arriving at the extent of the liability is to ascertain what moneys, effects, and rents are assets in the administrator’s hands. It certainly is not the moneys, effects, and rents belonging to the heir, but such only as pass to the administrator as assets at the common law and by statute. The rents that were assets in the administrator’s hands by law the surety would be liable for, and when not assets, the administrator becomes personally liable to the party entitled.

If the legislature intended to make sureties on such bonds liable for rents other than such as had been declared by the common law and statute, the liability would have been fixed by the same statute, and not left to be implied from the use of a word inserted in the form of a bond to be executed by the personal representative. That he collected the rent by color of his office might be held to apply in a case where the written evidence of the claim passed to the administrator, and was collected by him as any other chose in .action belonging to the intestate; but it can not be held to extend further with no other light to guide judicial inquiry than the use of the word rents in the bond.

This court held, in effect, the same doctrine in the case of Rank v. Hill’s adm’r (8 Bush). The principal question in that case was whether the word freehold used in the statute was to be restricted in its meaning to an estate for life, or so extended as to include an estate in fee-simple. It was adjudged that it embraced within its meaning both estates, and also that rents accruing after the death of the intestate did not pass to the administrator except as provided by the statutes already referred to. It results, therefore, that the allegations of the petition contain no cause of action against the surety.

It is proper to suggest that as the rents accrued to the infants, the action should be prosecuted in their name by their guardian or next friend; but as one of the infants had no guardian when the action was instituted, and as this infant sues by his next friend, a general demurrer could not have been sustained, for the reason alone that the guardian had instituted the action in his own name for one of the infants, instead of the infant suing by the guardian. Upon the return of the cause the petition should be amended as to the infant William Unselt, making him one of the plaintiffs, by his guardian, W. H. Wilson.

The judgment of the court below is reversed, and cause remanded for further proceedings consistent with this opinion.

Judge Copee dissents from this opinion in so far as it determines that the surety is not liable for the rents.

In response to the petition op appellants’ counsel eor a rehearing, JUDGE PRYOR delivered the eollowing extension op the opinion oe the court:

In the case of Harmon v. Ross’s adm’r (MS. Opinion, Winter Term, 1869), relied on by counsel for the appellees, the appellants in that case had rented a tract of land and a ferry from the administrator, and executed to the latter their note for the rent, and when sued by him denied his right to recover, as he had no authority to rent the farm. This court in that case said: The appellants have failed to bring the heirs before the court or to have them interplead so as to have the question judicially determined to whom the money should be paid. There is no averment in the answer that the administrator who sues is insolvent, and no facts alleged from which it appears that appellants will be responsible to the heirs after they shall have paid the money to the administrator. The answer may be true, and the adult heirs and the guardian of those who ai’e infants may have approved and ratified the contract made with the administrator for the rent.”

The case was thus disposed of upon the pleadings, but the court proceeds to say that the form of the bond prescribed by the statute "is that the administrator will well and truly make a distribution of any surplus money, effects, and rents which may come to his. hands, or to any one for him by color of his office, to the persons entitled thereto. As therefore these rents, when collected, will come to his hands by color of his office, he and his sureties will be liable on the bond.”

The attention of the court was evidently called more particularly in that'case to the state of the pleadings than the liability of the sureties on the administrator’s bond. Neither the sureties nor heirs were before the court; and the appellants, after the execution of the note to the administrator and the delivery by him to them of the possession of the land and ferry, attempted to avoid a recovery by the simple denial of his right to maintain the action.

The words inserted in the bond, will well and truly make proper distribution of any surplus money, effects, and rents which may come to his hands, or to any one for him, by color of his office,” can not be held to embrace an estate that has passed to the heir, whether adult or infant, or to moneys and effects that belong to others than the intestate, and to which the administrator has not even a color of right. If the construction contended for is adopted and the administrator should rent out lands in his fiducial capacity belonging to the heir that did not descend to him from the intestate, it might with the same propriety be'maintained that he received the rent by color of Ms office, and his sureties were therefore liable; and so of moneys or effects received from a stranger belonging to the heir, and in which the intestate in his lifetime had no interest whatever. If the law did not designate in express terms what constituted assets in the hands of the administrator, the stipulations of the bond alone might be looked to in order to fix the liability.

The personal representative agrees to administer the goods, chattels, effects, etc., of the intestate, and by the stipulations of the bond is liable for rents collected, as well as the moneys and effects of the intestate. When charged with the rent the surety looks to the statute in order to see the extent of his liability and the rent that the administrator hás the right to collect in his fiducial capacity. He may have collected rents or moneys by color of his office. As between the administrator and heir under a renting by the intestate, the latter dying before the rent falls due, the obligation by the tenant passing to the hands of the administrator, the proceeds when collected by him would be, under the statute, apportioned between the personal representative and the heir. In such a case it would be proper to hold that the sureties were liable, the administrator having an apparent right to the fund he collects.

It never could have been intended by the legislature, in using the words “color of office,” to make the sureties in an administrator’s bond liable for the income of real estate that has passed directly to the heir, and to the use or possession of which the personal representative has no color of right. The technical definition of the term “color of office,” if applied, would make the sureties liable for every act done by the administrator and claimed by the latter to have been exercised in his representative capacity. Such was not the sense in which the term was used by the law-making power. With such a latitudinous construction of the stipulations of an administrator’s bond, there would scarcely be a limitation to the sureties’ liability.

While it has been argued that the construction herein given may prove a great hardship to infants, it must also be recollected that a contrary rule would recognize the right of adults to make the surety liable on the same facts.

JUDGE GOFER

delivered the following as his dissenting OPINION.

I do not concur in so much of the opinion in this case as decides that the sureties in the administrator’s bond are not liable for the rent collected by him.

I concede that the administrator had no legal right to rent the real estate, or to receive the rent, but think he and his sureties have covenanted that he would pay whatever rent might come to his hands, by color of his office, from land descended from the intestate to his heirs at law.

Sections 48 and 53 of the act of 1797 (1 Statute Laws, 668, 669) made rent assets in the hands of an administrator under precisely the same circumstances and to the same extent as is done by sections 26 and 30 of article 2 of chapter 37 of the Revised Statutes, section 48 of the former act corresponding with section 30 of the latter, and section 53 with section 26. The statute of 1797 (1 S. L., page 663) prescribed the form of an administrator’s bond, but no mention was made therein of rent; yet it was never held, so far as I am aware, that the sureties of an administrator were not bound for any rent he may have received under sections 48 and 53; but it was repeatedly held that such sureties were not liable for other rents received by the administrator. Thus the law stood at the time of the .adoption of the Revised Statutes.

The General Assembly must be presumed to have been aware both of the provisions of the statute and the construction put upon it by this court. If there was no intention to change the liability of the sureties on the bond, it is not probable they would have changed the form of the bond required to be executed.

It was not necessary to make a change in order to render the sureties liable for rent received under sections 26 and 30 of article 2, chapter 37; their liability on a bond in the form prescribed by the act of 1797 was unquestioned.

Why then insert a new covenant, or rather a new item, for which the sureties were to be liable, in the new form of a bond, unless the intention was to change the liability of those who might sign it? The reason is, to my mind, clear. It is a popular fact known to the legislature and to us all, that heirs ignorant of their rights often yielded control of real estate which had descended to them from the intestate, to the administrator, who either ignorantly, or through design, took advantage of their ignorance or helplessness and usurped control of the realty.

It was also known to the legislature that this court had repeatedly decided that the sureties of the administrator were not liable for rents. As the people were not all lawyers, and much the larger portion were ignorant of their rights in this respect, and many were from their tender years incapable of asserting their rights, there was an evil which needed to be remedied, and in my opinion it was to meet that very evil that the change was made in the form of the bond, and this case aptly illustrates the wisdom of such a change. Here were infants of very tender years who do not appear to have had a guardian, and no doubt their friends believed, as has always been common with the great mass of people, that the administrator had a legal right to rent the realty and receive the rent. These sureties were able to protect themselves, while those upon whom loss is now to fall, if it falls upon any one, were incapable from want of discretion to do so. I know one person’s ignorance of the law can not change the legal liability of another; but I refer to this to show that there was an evil, and that what the legislature has done is fairly susceptible of a construction which will remedy that evil, and that the action of the legislature was meaningless unless it means what I contend it does.

When the legislature has done an act or used a word to which no effect or meaning can be given, then, and not until then, I am willing to say that the act done has no effect, and that the word used has no meaning.

Nor do I regard the argument made, that it is not to be presumed that the legislature intended to make so important a change in the law by inserting a single word in the form of bond prescribed, as militating against the position I have taken. We are to look to the bond in order to learn what the obligations of the sureties are, and when we find they have undertaken that the administrator will account for surplus rents we are not at liberty to say that such a bond imposes no greater obligations upon those who sign it, than they would have been under, if that clause had been omitted.

But it is asked, for what rent shall the sureties be liable ? I answer, for such rent as the administrator has received from realty which descended from his intestate to those asserting claim to rents, such rent as he received under color of his office, under claim of right to it as administrator.

The sureties in the bond sued on, which is the same as was prescribed by the Revised Statutes, covenanted that the administrator would “well and truly make proper distribution of any surplus money, effects, and rent which might come to his hands, or to any one for him, by color of his office.” The words in italics, like the word “ rent,” were not in the old form of bond. Do they also mean nothing? What does the phrase “by color of his office” mean? It means “an act unjustly done by the countenance of an office, being grounded upon corruption, to which the office is a shadow and color” (Wharton’s Law Dictionary, 157), “a pretense of official right to do an act made by one who has no such right” (Bouvier’s Law Dictionary, vol. 1, p. 293; 9 East, 364).

The clause in the bond then means that rent which an administrator receives by color of his office — that is, “ by countenance of his office ” — under “ pretense of official right,” but to which he has no right, shall be accounted for by his sureties. But under the construction given to the bond in this case the words “ by color of his office,” like the word “ rent,” must be rejected as meaningless, and the sureties of administrators can never be held liable for any money received by them to -which they were not entitled, although it be received' under claim or pretense of right or even under an honest belief of such right.

If it be asked whether sureties are to be held to. answer for money received by administrators to which they had no right as such, I answer that if it was claimed and received under color of office they have expressly covenanted to answer for it, and there is no injustice or hardship in holding them to the terms of their covenant.

If administrators claim and receive money on the ground that they have a right in that character to demand it, the sureties are bound under the form of bond executed by the sureties in this case, and they can not, when sued, go back and litigate the question whether their principal had strict legal right to receive the money. They are concluded by any settlement which concludes him, unless it be collusive; and the same principle should hold them bound by his claim and receipt of money as belonging to him as administrator.

For these reasons I dissent from the opinion of the majority of the court on this .point.

Since writing the foregoing, a petition for rehearing has been filed and attention called to the manuscript opinion in Harmon v. Ross's adm'r (Winter Term, 1869), in which the precise question now under consideration was before this court.

That was an action by an administrator on a note given to him for the rent of real estate which descended from the intestate to his heirs at law. The authority of the administrator to rent the land was denied, and it was also denied that the administrator at the time of renting had possession of the real estate for the rent of which the note was given. That answer, this court decided, presented no defense to the action on the note, and after using the language first quoted in the opinion of the majority of the court in this case, in response to the ' petition for rehearing, the court went on to say: “ Besides, the administrator and his sureties are required by the form of his bond, prescribed by the statute, to covenant, among other things, that the administrator shall make a just and true account of all his acting and doings, and will well and truly make a proper distribution of any surplus money, effects, and rents which may come to his hands, or to the hands of any one for him by 'color of his office, to the persons entitled thereto. As therefore these rents, when collected, will have come to the hands of said administrator by color of his office, and he and his sureties will be liable on his administration bond (assuming, as we must do, that the county court required him to execute a bond in the prescribed form) to the distributees for the same, and having their remedy on the bond, they would at least be required to exhaust that remedy before they could look to appellants, even if they would in any event be responsible.”

If Ross’s administrator and his sureties should be sued on his bond by Ross’s distributees for the money which this court compelled Harmon to pay to him for rent, under the decision in that case they would be bound; but that decision has been overturned in this case; and if we follow the opinion of the majority of the court we must decide that the sureties are not responsible, and the rent may be lost, unless we will also hold that Harmon’s payment to the administrator, although adjudged by this court to be rightful, was unauthorized, and require him to pay again.

There is no danger that sureties may be held, under the rule for which I contend, to answer for moneys and effects which never belonged to the intestate, or for rents of land not descended from him. An administrator stands, as respects his duties, in the room and stead of his intestate; and that to which the intestate, if living, would have no right — as, for instance, rent of land descended to his children from their mother — could under no circumstances go - into the hands of his administrator.

The administrator and his sureties not only covenant that he will administer the goods, chattels, and effects of the intestate, but they distinctly covenant that he will well and truly account for and make proper distribution of any surplus rent which may come to his hands.

I have tried to show that this covenant was insei’ted in the bond for a purpose, and that it was not necessary in order to render the administrator’s sureties liable for rent received by them from an estate owned by the intestate which under the statute passes to his personal representative; for they were liable, under the statute of 1797 and the bond required by that act, for rents received from such estate, upon a. covenant to well and truly administer the goods, chattels, and credits, and make distribution of the surplus, because such rents were the proceeds of a chattel interest in land, and were embraced in the word “ chattels;” and the only reason, in my opinion, for adding to the covenant the word rents ” was to hold the administrator’s sureties liable for something they would not have been liable for on a covenant in the old form.  