
    Campbell v. Johnson.
    In an action upon an administrator’s bond by the widow, who was the sole owner of the deceased husband’s estate, one of the sureties in his answer averred that the administrator at the time of his appointment was wholly insolvent, and has ever since remained so; that the decedent’s estate consisted solely of a note for $3,000, due from the administrator; that there were no debts due from the estate; that the widow was the only person interested in the estate; that he was induced to become surety upon the bond by the fraudulent representations and acts of the administrator and the widow, and that the purpose of such representations, and acts, and such appointment, was to make him responsible for the administrator’s otherwise worthless debt. Held, that the answer stated a good defense.
    Error to the District Court of Lawrence County.
    In May, 1878, Phoebe B. Johnson, the widow of Samuel C. Johnson, Sr., and at that time the sole owner of the estate of her late husband, brought an action in the court of common pleas of Lawrence county against Samuel C. Johnson, Jr., Frank F. Johnson and John Campbell. From the petition it appears that Johnson, Sr., died in March, 1876, that in April, 1876, his heirs duly assigned their respective interests in his estate to Mrs. Phoebe B. Johnson; that on the 16th day of June, 1876, Samuel C. Johnson, Jr. was appointed administrator of decedent’s estate, and gave bond with Frank F. Johnson and John Campbell as his sureties; that in April, 1878, the administrator filed his first and final account with the probate court; and that in May of the same year, upon the hearing of the account there was found to be due from the administrator the sum of $3,079. This sum the plaintiff sought to recover from the defendants upon the administrator’s bond.
    John Campbell filed a separate answer, and as bis first defense averred among other things, that Samuel C. Johnson, Jr. was a son of the decedent; that S. C. Johnson, Sr., at the time of his death, and for some time prior thereto, was a resident of Hamilton county, Ohio; that the legal right to administer the decedent’s estate was in his widow, who was also a resident of Hamilton county; that the whole estate consisted of a promissory note for the sum of $3,000, dated March 26th, 1873, due in one year from date, and given by Samuel C. Johnson, Jr.; that on the 16th day of June, 1876, and for some time prior thereto, Samuel C. Johnson, Jr. was wholly insolvent, and was unable to pay his indebtedness to the estate or to other persons, and was not possessed of any property or effects from which his debts could be collected by any process of law or equity; that Phoebe B. Johnson, the sole owner, as heir and by assignment of the estate, then knew that her husband, Samuel C. Johnson, Sr., was not in his lifetime indebted to any person, and that no administrator was necessary; that at that time-she was advised by her son, S. C. Johnson, Jr., that if she would have him appointed administrator, he would procure his son, Frank F. Johnson, an irresponsible person, and John Campbell, as his sureties, and thus enable her to collect the claim from Campbell; that thereupon the widow requested the appointment of Samuel C. Johnson, Jr. as administrator; that Samuel C. Johnson, Jr. when he requested Campbell to become a surety upon his bond, represented to him that no liability would be incurred; that administering upon the estate was a formal matter, rendered necessary to avoid possible trouble in the future, and did not make known to Campbell the indebtedness of himself to the estate; that Johnson, Jr. has ever since his appointment remained wholly insolvent, and has not paid any part of his note, and that the administering upon this estate in the county of Lawrence, the waiver of the right of Phoebe B. Johnson, the recommendation of the appointment of Samuel C. Johnson, Jr., and all the proceedings in and about the administration were devised by Phoebe B. Johnson and Samuel C. Johnson, Jr. to place some legal liability upon Campbell, whereby he might become responsible for the indebtedness of Samuel C. Johnson, Jr., the plaintiff well knowing that in no other way could she secure the payment of the same.
    To this defense a demurrer was filed and sustained by the court of common pleas. This judgment was affirmed by the district court.
    
      O. F. Moore and Neal & Cherrington, for plaintiffs in error.
    
      John Hamilton, for defendant in error.
   Nash, J.

In this state it has been settled that the debt of an administrator is not released by his appointment and acceptance of the trust, but that his debt becomes assets in his hands and covered by the administration bond. Tracy v. Card, 2 Ohio St., 431. But the case presented by the first defense of Campbell’s answer and the demurrer thereto, is not controlled by this rule. The allegations of this defense, which are admitted to be true by the demurrer, show a cunningly devised scheme, amounting to a fraud on the part of the sole beneficiary of the estate and the administrator to make Campbell responsible for a worthless claim. This scheme cannot be made effective by the courts, and the dem.urrer should have been overruled.

Judgment reversed.  