
    Edward Baggott v. Ann Boulger and Margaret Boulger, Executrixes of J. Boulger, deceased, impleaded with Ann C. Baggott and Wm. R. Goulding.
    (Before Oakley, Ch. J., Campbell and Bosworth, J.J.)
    April 6;
    April 30, 1853.
    The objection, that there is an improper joinder of parties, when the facts appear on the face of the complaint, can only be taken by a demurrer. Code, §§ 144, 147, 148.
    When a claim against an estate is not presented to the executrixes or administrators within the 6 months prescribed by the Revised Statutes, the only effect of the omission is to limit the recovery in a subsequent suit by the creditor to the amount of the assets in the hands of the executor or administrator at the time of the commencement of the suit, and to deprive the plaintiff of all right to recover costs. (2 R. S., p. 88, § 34.)
    The right of action is only barred when the claim was presented, and having been disputed or rejected was neither referred nor prosecuted within 6 months thereafter. <2 R. S. ib. §§ 38, 39, 40, 42.)
    Where an order is made by the surrogate for the payment of a sum of money by the administrator to a creditor or distributee, and the order upon appeal has been affirmed by the Supreme Court, the administrator is estopped by such affirmance from alleging any error or defect in the proceedings before the surrogate.
    An order which concludes the administrator equally concludes his sureties.
    An administration bond is more than a bond of indemnity; its breach gives an immediate right of action against the sureties.
    An order of the surrogate directing the prosecution of the bond and declaring it to be assigned, is a sufficient assignment within the statute; the surrogate, not . being a party to the bond, cannot assign it as an obligee.
    The action upon the bond is, under the Code, properly brought in the name of the person for whose benefit its prosecution is directed. Judgment for plaintiff.
    
      This was an action upon a bond given by Ann 0. Baggott with the defendant Goulding and J. Boulger deceased as her sureties for the faithful administration by her of the personal estate of an intestate Joseph Baggott deceased. It was tried before the chief justice and a jury on the 13th of February, 1852.
    The following are the material facts of the case as proved upon the trial.
    On the 9th of July, 1838, Joseph Baggott departed this life, leaving Ann 0. Baggott, his widow, and the plaintiff and eight other children him surviving. He left a large amount of personal property. On the 25th of July, 1838, letters of administration were granted by the surrogate of the county of New York, to his widow. To obtain these letters, she executed a bond, together with William R. Goulding and John Boulger, to the People of the State of New York, in the penal sum of $10,000; conditioned that she should faithfully execute the trust, and also, should obey all orders of the surrogate of the county of New York, touching the administration of the estate committed to her. The amount of the inventory filed was $24,164.10. The debts due and paid, were $6,414.43.
    On the 15tli of September, 1845, the plaintiff presented his petition to the surrogate, praying that the administratrix might account, and that she be ordered to pay to him his distributive share. Thereupon, the surrogate made an order requiring the administratrix to appear before him, on the 20th of October, 1845, and render an account of her proceedings as such, and show cause why she should not pay to the petitioner the amount of his distributive share in said estate.
    On the day appointed, the administratrix appeared and filed an account.
    The parties in interest not being satisfied with such account, on the sixteenth of December, 1845, the surrogate referred the account to Nathan Skidmore as auditor, and directed said auditor to make a report of his proceedings and determination to the surrogate, at the surrogate’s office, in the city of New York, on the sixth day of January then next, and appointing that day for the appearance of the parties, to be heard on the question of confirming such report, or for asking such other order as might be deemed proper.
    
      On the 26th March, 1846, the said Skidmore made his report, that the estate of deceased amounted to $12,464.70, after payment of all debts and expenses, and that plaintiff was entitled to be paid $1113. The testimony taken was annexed to said report.
    On the 5th of May, 1846, the administratrix filed with the surrogate exceptions to the report of Mr. Skidmore.
    On the 15th July, 1846, the surrogate made a decree thereon, and after modifying the said report, ordered that the said ad- 0 ministratrix do pay the said Edward Baggott the sum of $773.76, being the amount due to him, as one of the next of kin of said intestate, together with the expenses of said accounting $19.90, and the costs of the applicant, which were taxed at $92.19.
    The administratrix appealed from said order to the Chancellor, on the 22d of July, 1846. The cause was heard upon said appeal, in the Supreme Court, and the order of the surrogate appealed from was affirmed with costs on the 13th of March, 1849. On the 7th day of May, 1849, the surrogate, in pursuance of said order of the Supreme Court, farther ordered and decreed, that Ann C. Baggott, administratrix, pay Edward Baggott the sum of $1248.43. A certificate of the amount of said decree was filed and docketed in the county clerk’s office, on the 7th of May, 1849, and execution was issued thereon on the 8th June, 1849, against Ann C. Baggott, and returned unsatisfied.
    On the 14th of May, 1850, the surrogate made an order-assigning the bond to the plaintiff, for the purpose of being prosecuted, in pursuance of said assignment; this action was brought on the 30th day of Mot. 1850.
    It was proved on the trial that a second administration bond in the penalty of $-■, dated 20th August, 1839, had been executed by the administratrix with the defendants Goulding and Joseph Outwell as her sureties.
    The following is the order made by the surrogate for the assignment and prosecution of the bonds.
    “ At a Surrogate’s Court, held at the City Hall, of the City of Mew York, on the' fourteenth day of May, One Thousand Eight Hundred and Fifty.
    
      “ Present, Hon. Alexandeb W. Beadeobd, Surrogate.
    “Edwaed Baggott, against Ann C. Baggott, Administratrix of Jos. Baggott, deceased.
    
      “ On reading and filing the petition of the above named Edward Baggott duly verified, setting forth the entry of the decree in the above court, on the seventh day of May, One Thousand Eight Hundred and Forty-nine; whereby the said Ann C. Baggott, ■ as administratrix, &c., of Joseph Baggott, deceased, was ordered, adjudged, and decreed to pay to the said Edward Bag- • gott, as one of the next of kin of said Joseph Baggott, deceased, the sum of -twelve hundred and forty-eight dollars and forty-three cents, and also, the filing of a certificate or transcript thereof, under the hand and seal of the Surrogate of said County, in the office of the Clerk' of the City and County of New York, on the same day, and the issuing of an execution thereon, to the Sheriff of the City and County of New York, on the eighth day of June, 1849 ; against the property, real and personal, of the said Ann C. Baggott, as administratrix, &c., as aforesaid; and the return of the said execution by the Sheriff of the City and County of New York, with his return thereon endorsed in substance, that the said Ann C. Baggott, administratrix, &c., as aforesaid, had no goods, chattels, or real estate, whereof to satisfy the said execution.
    “ On motion of George Carpenter of counsel for said Edward Baggott, it is ordered according to the statute in such case made and provided, that the bonds given by the said Ann C. Baggott, as administratrix of the estate of Joseph Baggott, deceased, on the 25th day of July, 1838, and on the 20th day of August, 1839, for the faithful execution of the trust reposed-in her as such administratrix, &c., be and the same hereby are assigned to the said Edward Baggott, in whose favor said decree was made for the purpose of being prosecuted.
    (Signed) . “ A. W. Beadfobd, Surrogate.”
    The order was admitted in evidence, subject to the objection of the defendants’ counsel, that it could not operate as an assignment.
    When the testimony was closed on the part of the plaintiff, the counsel for the defendants moved to dismiss the complaint, and excepted to the decision of the judge overruling the motion. The grounds of the motion are not necessary to be stated, as they involve the same questions that were argued at general term.
    A verdict was rendered for the plaintiff, assessing his damages, by reason of the breach of the condition of the bond, at $1,490.10. The verdict, was taken, subject to the opinion of ‘ the court, upon a case to be heard at the general term. Either party to be at liberty to turn the case into a bill of exceptions.
    
      E. Sandford, for the plaintiff,
    now moved for judgment on the verdict, and argued as follows:
    I. The assignment of the bond, by the surrogate, was properly admitted. The objection taken, that it was not an assignment, but only an order, is incorrect in point of fact. It is both--an order and an assignment. The statute requires the surrogate, on application, to assign the bond of the administrator to the person in whose favor such decree is made, for the purpose, of prosecuting it, but prescribes no form of transfer. (Laws of 1837, p. 535, § 65; Bradley v. Root, 5 Paige, 632; Thigpen v. Harne, 1 Iredell’s Ch. R. 20.)
    . II. The notice to dismiss the complaint was properly overruled. 1. There was no misjoinder of causes of action or of parties. Ueither the administratrix nor the surety, referred to in the objection, was summoned in the action, nor did either - appear therein. The plaintiff was entitled to amend the summons and title of the action, by striking out their names. As the persons objected to were not before the court, no foundation for this objection existed. If any objection could be taken by the defendants at the trial, the only proper objection was, that the cause was not in readiness for trial. The defendants should have demtirred, if the objection existed. (Code, § 144, sub. 5; Id. §§ 172,173.) 2. The proceedings before the surrogate were . within the jurisdiction of that officer, the administratrix was duly cited to appear, and actually appeared before him, in all the proceedings, and his orders or' decrees made thereupon against her, were legal apd binding upon her and her sureties. (a.) The surrogate’s, courts are at all tim.es open for the Hearing of any matters within the jurisdiction thereof. (2 R. S. 221, § 2.) Ho record of. adjournments is required to be kept, nor is there any roll of the proceedings upon which entries of continuances can be made. The jurisdiction being shown, every proper requisite to the act of jurisdiction is to be presumed as a conclusion of law. (The Philadelphia and Trenton R. R. v. Stimpson, 14 Peters, 448, 458; Gignou's Lessee v. Astor, 2 How. S. C. R. 319, 339; Corwin v. Lowry, 7 How. 172, 181.) (5.) The surrogate had jurisdiction of the subject matter of compelling the administratrix to render an account, upon the application of one of the next of kin, and had jurisdiction of the person of the administratrix, by the issuing and service of Ms citation, and by her appearance thereupon, and rendering her account. Upon this, the surrogate acquired jurisdiction immediately to decree the payment and distribution of the share of the petitioner by the administratrix. (2 R. S. 92, § 52, 53, 51; Id. 95, § 71; Id. 96, § 82; Gignou’s Lessee v. Astor, 2 How. 319, 338.) (e.) Having thus jurisdiction, if the surrogate decided against the administratrix without any evidence, or upon any evidence received by him, which was not legally competent, or without legal authority, directed Hr. Skidmore to take such evidence as the parties should think it proper to offer, and he to receive, and to report such evidence with his opinion thereon," and then decided upon such evidence and report ; such acts would be merely errors, for which the decree of the surrogate might be reversed upon appeal. The order-having been affirmed on appeal, cannot be impeached in this collateral manner by any such alleged errors. ( United States v. Annedouds, 6 Peters, 691, 729; Thompson v. Tobruie, 2 Peters, 157, 168; The State of R. I. v. The Commonwealth of Massachusetts, 12 Peters, 657, 718; Ex parte Natkins, 3 Peters, 193, 206, 7; Voorhees v. The Bank of United States, 10 Peters, 449, 473; Gignou’s Lessee v. Astor, 2 How. 319, 339, 313.) (d.) The statute conferred express authority upon the surrogate to appoint one or more auditors to examine the accounts presented to him, and to make a report thereon, subject to his confirmation. (2 R. S. 91, § 61.) (e.) If the surrogate had not such authority, the papers produced show that, the administratrix assented to it. She was present when it was made, and did not oppose. She attended personally, and by counsel, before the auditor. She agreed that the account settled in 1840 should be the substratum of' that account, and that oaths to witnesses should be waived. She produced witnesses before the auditor. She excepted to his report, and thereupon obtained a further allowance of $3,072.24. The sureties employed the counsel to prepare and argue these exceptions, (f.) The order of the surrogate, if unauthorized, did not deprive him of his jurisdiction. The accounts were referred to the auditor to make a report thereon to the surrogate’s court, and appointed a time in that court for the appearance of the parties, and the decision of the questions arising upon the accounts, (gr.) If the order were not authorized, the accounts remained before the surrogate for his judicial action. The parties agreed that he should base that action upon the evidence reported by Mr. Skidmore, and voluntarily appeared before him, and submitted the accounts thereupon to his decision. If the order had ampunted to a discontinuance, a new citation could have been issued by the surrogate, and jurisdiction over the person of the administratrix have, been gained thereby. The right to require such a citation was a personal privilege, which the administratrix waived by her appearance. The sureties concurred personally in this waiver. (Kendall v. The U. S., 12 Peters, 524, 623; Voorhees v. Bank of U. S., 10 Peters, 423.) (h.) The appeal from the decree of the surrogate was taken by the administratrix and her sureties. She asked that such decree might be made thereon as should be just, and the Supreme Court affirmed the surrogate’s decree with costs, and remitted it to the surrogate to be carried into effect. In obedience to this judgment, the surrogate decreed the payment of the amount adjudged to be due from the administratrix to Edward Baggott, by the Supreme Court upon her appeal. He had jurisdiction to make that decree, and it is for the non-performance of that order that this action is brought. 3. The objections that the surrogate never fixed the security, and did not approve the bond, are not true in fact. He took the bond, and thereupon issued letters testamentary. The bond, on its production from the records of the surrogate’s office, disproves these objections. (Philadelphia and Trenton R. R. v. Stimpson, 14 Peters, 448, 58; People v. Falconer, 2 Sandf. R. 81, 83.) 4. The objection that letters were issued before the bond was executed, is not correct in fact. 5. The administratrix being bound by the decree, the sureties were also bound by it. Their undertaking was, that she should obey all orders made by the surrogate, touching the administration of the estate committed to her. (Mann v. Eckford’s Exrs., 15 Wend. 502, 510; Willey v. Paulk, 6 Conn. R. 74; Jackson v. Griswold, 4 Hill, 522, 32; People v. Falconer, 2 Sandf. R. 81, 84.) 6. The suit was properly brought in the name of the plaintiff. (Code, § 111.)
    III. Ho defence was proved. There was no claim presented by the plaintiff to the executrixes, nor any disputing or rejection thereof, within the statute, so as to require a suit to be brought within six months thereafter. Here a suit was brought, and an answer put in, and it was then discovered that no order for prosecution of the bond had been in fact entered. It was thereupon-discontinued, and the order obtained, and the present action was brought. (2 R. S. 88, 89, §§ 34 to 38.)
    IV. Judgment should be given for the plaintiff for the amount of the damages assessed by the jury, for the breach of the condition of the bond $1,490.10, with interest thereon, from the 13th of February, 1852, and "costs of suit.
    
      J. Van Buren, contra,
    
    insisted that the action could not be maintained, and that the complaint ought to have been dismissed, upon the following grounds.
    I. This action, upon an administration bond alleged to have been executed by the defendants, Ann C. Baggott (as principal), and William R. Goulding and John Boulger (in his lifetime) as sureties, brought jointly against the principal and one of the sureties, and the executrixes of the other, praying judgment personally against all the defendants, cannot be maintained. (2 Burr. 1190; Grant v. Shuster, 1 Wend. 148; Code, § 143; Alga v. Scoville & Co., 6 How. Pr. R. 131.)
    H. Hor can it be maintained, because not instituted within the time required by 2 R. S. 89, § 38. The notice to creditors was first published 20-21 October, 1848, requiring the presentation of claims by the 24th of April, 1849. The surrogate’s decree, which constitutes the cause of action, was entered May 7, 1849. The claim upon it was presented by the present claimant (by suit) June 27, 1849, and disputed (by answer); this suit was subsequently instituted November 30, 1850.
    IH. The decree of the surrogate was void. 1st. It was founded upon the report of Walter Skidmore, auditor, on an accounting, which was not a final accounting. (Bronson v. Ward, 3 Paige, 189; Stone v. Morgan, 10 Paige, 615.) The surrogate had no authority to appoint an auditor, except upon a final accounting. (2 R. S. 92; 2 R. S. 320, § 1, sub. 3.) His court being one of special and limited jurisdiction, his action, except in the mode prescribed, was void. (People v. Corlies, 1 Sand. Sup. C. R. 228, 247; Corwin, v. Merritt, 3 Barb. S. C. R. 431; Sharp v. Speir, 4 Hill, 76; McDonald v. Bunn, 3 Denio, 45.) 2. The reference to an auditor, by the consent of the creditor and administratrix, was a discontinuance of the proceeding before the surrogate. (Green v. Patchin, 13 Wend. 292; Bank of Monroe v. Winder, 11 Paige, 533; West v. Stanley, 1 Hill, 69.) 3. The proceedings before the surrogate do not appear to have been adjourned from time to time. (2 R. S. 3 ed., 320.) 4. The proceedings do not show that the surrogate of the city and county of New York had jurisdiction to grant letters of administration upon the estate of Joseph Baggott, deceased.
    IY. The sureties on the bond of administration were discharged from liability for the plaintiff’s claim, because, pending the reference to the auditor, the remedy against the principal, in the legitimate mode, was suspended, and the rights of the sureties changed. (Clark v. Niblo, 6 Wend. 236; Rathbone v. Warren, 10 J. R. 592; Bangs v. Strong, 7 Hill, 250.)
    V. The order of the surrogate of the 14th May, 1850, entered in his records, did not constitute the assignment of the bond contemplated by the statute. 1. It did not authorize the plaintiff to maintain a suit in his own name. (Bos v. Seaman, 2 Code R. 1.) 2. No written transfer was executed, nor wa’s the bond delivered to the plaintiff. (Sess. Laws, 1837, §§ 63, 64, 65.)
   By the Court. Bosworth, J.

It is objected that the plaintiff has improperly joined in the action the surviving obligors and the personal representatives of their deceased co-obligor.

The facts on which the objection is based, appear upon the face of the complaint. If the objection supposed to exist is, that several causes of action are improperly united, the only mode by which advantage could be taken of it, was by demurrer. (Code, §§ 144, 147, and 148.) It was not so taken in this action.

The only effect of omitting to present to an executor or administrator, a claim against his testator or intestate, within the six months prescribed by § 31 of 2 R. S., p. 88, is to limit the recovery in a suit subsequently brought by such a creditor, to the amount of such assets as may be in the hands of the administrator or executor at the time such suit is commenced, and to deprive him of all right to recover costs. (2 R. S. 89, §§ 39,40, and 41.)

The right of action is not barred where the claim was not presented at all, but only where it was presented and disputed, or rejected, and neither referred nor prosecuted within six months after being disputed or rejected. (§§ 38, 39,10, and 12.)

The initiatory proceedings before the surrogate to compel Ann C. Baggott to appear and render an account, conformed to the statute. She appeared and presented her account, and such proceedings were had that he made a decree, directing her to pay, on account of the assets she had received, a certain sum to the plaintiff. She appealed to the Supreme Court, and that court affirmed the decree. Hie judgment of the Supreme Court remains in full force and effect, and the surrogate, in obedience to the mandate of that court, decreed she should pay the sum originally decreed to be paid, with interest and costs.

We have no doubt that she is concluded by the order appealed from, and its affirmance by the Supreme Court, and is now estopped from alleging any error or defect in the. proceedings before the surrogate.

Whenever any order is made by a surrogate, in respect to the administration of an estate cognizable by him, which concludes the administrator, the sureties of the latter are also concluded by it.

This is more than a mere bond of indemnity. The condition of it is, that their principal “ shall obey all orders of the surrogate of the city of New York, touching the administration of the estate committed to her.” It is equivalent to a covenant to pay all judgments that maybe recovered against her for a specified cause.

The making of. the order for payment of a certain sum, and refusal to pay, or the recovery of a judgment and non-payment, give an immediate right of action, and the order or judgment concludes the surety or covenantor, until impeached and avoided for fraud. (Chace v. Henman, 8 Wend. 452; Rockfeller v. Donnelly, 8 Cowen, 628; Jackson v. Griswold, 4 Hill, 532; People v. Falconer, 2 Sand. S. C. R. 81.)

There is no attempt to impeach and avoid the surrogate’s order for fraud; There is no attempt to impeach its intrinsic justice.

The objection, that the surrogate’s order of May 14, 1850, did not constitute the assignment of the bond contemplated by the statute is, We think, untenable. The surrogate was not a party to the bond, and, in the nature of things, could not execute an assignment fts an obligee.

He commonly acts by order, and this order, by its terms, “assigns” it, “for the purpose of being prosecuted.” This is in substance and effect the only assignment contemplated by the statute.

notwithstanding the assignment, he retains the custody of it, for the common benefit of all persons having claims against the estate. The assignment contemplated by the statute is in effect only the grant of a permission or authority to prosecute the bond.

We see no objection to the action being brought in the name of the plaintiff. It is a useless proceeding to bring it in the name of “the people, on the relation of Edward Baggott.”

Whether sued in the name of the party for whose benefit it is ordered to be prosecuted, or in the name of the people, the same facts are to be stated, the same number of separate suits may be had, and the consequences are the same, in either case, to” the sureties.

The common law rule, that an action on a bond must be brought in, the name of the obligee, whoever may be the owner, is abrogated by the Code. It must now be brought “in the name of the real party in interest.” (Code, § 111; 2 R. S. 476 ; Title 5 of chap. 8, part 3; Code, § 471.)

The plaintiff is the real and only party in interest prosecuting the action. The Code says that he may sue in his own name.

If a defect, it is a defect of parties, the defect being not that his name appears as a party, but that the people are not named with him as the parties prosecuting “on his relation.” This defect, if it be one, appears on the face of the complaint, and is not objected to by demurrer. (Code, § 144.)

We concur in the opinion that the plaintiff is entitled to a judgment on the verdict.

The claim not having been presented to the defendants, as required by § 34 of 2 R. S. 88, the plaintiff is not entitled to costs to be collected of the estate of John Boulger, dec’d, or from his executrixes personally. (2 R. S. 90, § 41; Code, § 317.)

A judgment will be entered in proper form for the amount of the verdict .against Margaret Boulger and Ann Boulger, executrixes, &c.  