
    George F. Choate, Judge of Probate, vs. Samuel W. Thorndike & others.
    Essex.
    Nov. 6, 1884.
    Jan. 10, 1885.
    Field & C. Allen, JJ., absent.
    If a surety upon the probate bond of the administratrix of an estate, 'who is removed from her trust for failure to account for assets received by her, is himself appointed administrator de bonis non of the estate, his liability upon her bond constitutes a debt from him to the estate, which, upon his becoming administrator, is assets in his hands with which he is chargeable, although the amount has not been fixed by any account rendered, or by judgment, and he has not in fact charged himself with it; and the sureties on his bond are liable accordingly.
   W. Allen, J.

This is an action upon the probate bond of the defendant Thorndike as administrator de bonis non of the estate of Elizabeth F. Hodgdon. The defendant Thorndike was one of the sureties upon the bond of the administratrix of said estate. The administratrix was removed, and he was appointed administrator de bonis non. About six weeks after his appointment, he resigned the office, and H. P. Moulton was appointed to succeed him; and this action is brought for the failure of Thorndike to render an inventory of the estate, and to account for and pay over the assets belonging to it. A breach of the bond by failure to render an. inventory is admitted; the only question is as to the amount for which execution shall issue.

Thorndike, at the time of his appointment, was liable as surety upon the bond of the administratrix for the breach of it in not accounting for assets of the estate received by her. The only question is whether he was bound to account for the amount of such assets. He was liable on the bond for the amount of the assets which the administratrix received and did not account for, and that constituted a debt from him to the estate, which, upon his becoming administrator, was assets in his hands with which he was chargeable, although the amount had not been fixed s by any account rendered, or by judgment, and though he did not in fact charge himself with it. It was his duty as administrator to ascertain the amount and to charge himself with it. It is sufficient to refer to the recent case of Tarbell v. Jewett, 129 Mass. 457, which is directly in point, and where the cases are referred to and the whole subject fully considered in the opinion of the court given by Mr. Justice Endicott.

G. B. Ives, for the defendants.

C. Sewall, for the plaintiff.

Judgment for the plaintiff affirmed.  