
    Wayne Griswold et al. v. Mary Frink et al.
    The surplus of the proceeds of a sale of real estate by an administrator, remaining in his hands on the final settlement of his account, under the statute, is to he considered and disposed of as real estate, and the widow of the intestate is not entitled to any part thereof in her capacity as one of the distributees of the personal estate of the deceased.
    Error to the District Court of Pickaway county.
    Mary Frink, by her next friend, and John Frink, her husband, commenced an action against George Gearhart, Wayne Griswold, and Wilson Baker, in the Court of Common Pleas of Pickaway county, for an alleged breach of the condition of an administration bond, executed by Gearhart, as principal, and Griswold and Baker, as his-sureties.
    The bond was executed September 8,1851. The condition thereof was as follows :
    “ That whereas, the above-bound George Gearhart has been duly appointed, by the Court of Common Pleas, administrator of the personal estate of George Thresher, late, etc. Now, if the said George Gearhart shall well and truly do and perform all and every of the duties required of him, as administrator as aforesaid, according to law,, then,” etc.
    It is alleged in the petition that Gearhart, on the 29th day of July, 1863, settled with the Probate Court, which found in his hands $648.23, which the court ordered him. to pay over according to law.
    The petition states that Mary Frink is the widow of George Thresher, deceased; and that, “being the widow of the said intestate, George Thresher, she is entitled, as-such, to receive from the said administrator, George Gear-hart, the one-half part of the first four hundred dollars, and the one-third part of said.sum of $648.23 — in all, the sum of $349.41 — with interest from April 1, 1863.”
    A demand of this sum is averred, and that payment was refused. The defendants, Griswold and Baker, demurred to the petition. The demurrer was overruled. Then Griswold and Baker filed an answer in the action, which shows the-following facts:
    That the personal estate of the decedent, George Thresher,, amounted to $231.85; that the debts and charges of administration amounted to $491.90; that the real estate of the decedent was sold for $908.28; of the proceeds of the-sale, there was needed for the payment of debts only $260.05;. that the surplus of said proceeds, therefore, amounted to-$648.23. That the administrator duly administered and accounted for all the personal estate, and for so much of the-proceeds of the sale of the real estate, as was necessary for the payment of debts of the decedent and the expenses of administration ; that the administrator has failed to distribute, according to law, the surplus of the proceeds of the sale of the real estate remaining after the payment of the debts, etc. This failure is assigned as the breach of the condition of the bond.
    The plaintiff demurred to their answer, and this was sustained, and judgment was rendered for the plaintiff in the action for the amount claimed by her.
    Griswold and Baker filed their petition in error, in the District Court, to reverse the judgment of the Court of Common Pleas, on the ground that the court erred in overruling the demurrer to the petition, and in sustaining the demurrer to their answer. The District Court affirmed the judgment. To reverse these judgments, this petition in error is prosecuted in this court.
    
      Harrison Marsh, for the plaintiffs in error:
    The surplus of the proceeds of the sale of real estate remaining after the payment of the debts of a decedent are not assets. 1 Burrill’s Law Dic. 100; 1 Story’s Eq. Jur. 581; Williams on Ex’rs, 1408; Quinby v. Walker et al., 14 Ohio St. 193; Chapman v. Loveland, 11 Ohio St. 214; Arbuckle v. Tracy, 15 Ohio, 432; 20 B. Mon. 95; 4 J. J. Marsh. 49; 7 Dana, 1. When more land is sold than is necessary for the payment of debts, such excess is not “sold for the payment of debtsbut it is sold to save such excess from, injury and loss, and for the benefit, not .of the personal representatives, or distributees, or creditors, but of .the heirs.
    
    Such excess remains “ real estate.” As to it, the administrator acts, not as administrator, but as trustee — just as a master in chancery, or receiver. Eor the due performance of his duties as such trustee of the excess, he must give bond. Administrator’s Act, sec.' 131. Such bond is entirely distinct from the administration bond.
    We contend that the bond sued on is not for the performance by Gearhart of all his duties as administrator of George Thresher. It was the duty of Gearhart, as administrator, to do two things; 1. To administer the personal estate, by converting the same into money and applying it to the payment of debts. 2. To administer so much of the real estate as was necessary for the payment of debts, by converting the same into money and applying it to the payment of debts. These duties are separate and distinct, just as the personal estate and the real estate are separate and distinct things. As stated in section 117 of the administrator’s act, the real estate can not be sold until it is ascertained that the “personal estate” is insufficient to pay the debts. In a number of other instances, the statute recognizes the difference between the “ personal estate ” and the real assets, and the duties of.-the administrator in regal’d thereto. See secs. 70, 72, 117, 121, 162, 165, 170, 196.
    The condition of this bond is: “ That whereas . . Gearhart has been duly appointed . . . administrator of the personal estate of George Thresher. . . . Now, if said Gearhart shall . . do and perform all and every of the duties required of him as administrator as aforesaid” (that is, as administrator of the personal estate of George Thresher), then, etc. The bond is not for the performance ■of his duties as administrator of the estate of Thresher, ■but of the personal estate of Thresher. This is the letter of the bond, and the liability of sureties can not be extended ■beyond the strict letter thereof.
    How, then, can these sureties be liable when they have ■expressly limited their liability to the personal estate ?
    We think the case of Ohio v. Medary, 17 Ohio, 554, is much in point. “ The sureties, in a bond limited in its recitals, and conditioned to the faithful performance by the principal of his duties as a member of the board of public works, can not be made liable for his defalcation in not ¡accounting for money received as an acting commissioner.” We request the court to read the opinion of Read, J.
    This decision has been followed in all subsequent cases in this state. We ask the court to examine them:
    
      McGovney v. The State, 20 Ohio, 93: “The undertaking of a surety can not be extended beyond the terms of the contract into which he entered. An executor’s bond, describing the testator as James S. Findley can not, by parol evidence, be made applicable to the estate of Joseph S. Bindley.”
    
      The State v. Cutting, 2 Ohio St. 2: “ Sureties are never . to be visited with penalties; and their liability is never to be extended beyond the strict letter of the obligation into which they have entered.”
    
      Myers and Ingersoll v. Parker, 6 Ohio St. 501: As against the surety, the condition of a bond can not be at all varied from, or extended beyond, its plain terms.
    
      Hall v. Williamson, Adm’r, 9 Ohio St. 17: A surety is only liable according to the express terms of his bond.
    II. Even if the sureties on the administration bond are liable for the surplus money arising from the sale of the real estate, they are not liable to Mary Brink for any part thereof. The heirs of George Thresher can alone recover such surplus.
    Considering this surplus as real estate, how must it be disposed of by the administrator ?
    The act of March 7, 1835 (Swan’s Stat. of 1841, p. 286), and the act of Bebruary 24, 1831 (Id. 287), prescribe the mode of its distribution. Under the provisions of these acts, the widow in this case was not entitled to any part of this surplus, considering it as real estate. Her petition shows that she was entitled to claim only as widow — that there had not been an entire failure of kin of the intestate, in which event she would have been entitled to claim the surplus. Under the acts above cited, she could claim only one-third of the personal estate, unless there was an entire failure of kin of the decedent.
    The widow’s dower was assigned to her by metes and bounds, or specially as of one-third of the rents and profits, or else she is still entitled to dower in the real estate sold. See Dower Act, 1 S. & C. 517, et seq.
    
    The act authorizing a widow’s dower to be set off to her in solido was not passed until April 8,1857. 1 S. & C. 622. But, if the widow’s dower could have been assigned to her in solido in the proceedings for the sale of the real-estate, under the law in force at that time, it was either so set off to and received by her, or she made no demand to have it thus set off; and, therefore, her dower must have been assigned to her by metes and bounds, or specially as one-third of the rents and profits, or she still is entitled to have it so set off. If it had been assigned to her in solido, the Probate Court would have been required to determine the just value in money of her dower interest in the land, and, upon failure to pay the same, the measure of her recovery would have been that amount, not one-half of the first $400 of the surplus and one-third of the residue.
    III. The Common Pleas erred in overruling the demurrer of Griswold and Baker to the petition of the plaintiffs, for two additional reasons:
    1. Because the allegations therein show no joint cause of action in favor of the plaintiffs. The case of Bartges v. O’Neils, 13 Ohio St. 72, is an authority decisive of this point.
    2. Because the petition does not allege that the plaintiffs obtained leave of the court to sue on the bond. Distributees can sue without such leave only to recover their share of the personal estate. 1 S. & C. 602, secs. 178, 179.
    
      F. C. Smith, for defendants in error:
    It is alleged that the default of the administrator arose from his neglect to account for and pay over the surplus of the proceeds of the sale of the real estate sold to pay the debts of the intestate, Thresher.
    The securities on the bond, the plaintiffs in error, claim that Gearhart was administrator of the personal estate only.
    This bond was given under the administration law of 1841, and is governed by its provisions.
    That law (S. & C. 569, sec. 13) provides that, “ Every administrator shall, before entering on the duties of his trust, give bond, . . . conditioned ... to administer according to law all the moneys, goods, chattels, rights, and credits of the deceased, and the proceeds of all his real estate that may be sold for the payment of his debts which shall at anytime come to the possession of the administrator,” etc.
    The bond on which this suit was brought is conditioned, if the said Gearhart shall well and truly do and perform all and every of the duties required of him as administrator, as aforesaid, according to law, that it shall be void.
    This is a good bond. “ Where the conditions of a bond are cumulative, the omission of one can not invalidate the bond so far as the other operates to bind the party.” Farrar v. Brown, 5 Pet. 373.
    The statute of 1831, relating to county treasurers (Swan’s Stat. of 1841, p. 971), provides that the county treasurer shall give bond, etc., “conditioned for the faithful discharge of his duties as treasurer.” It was held that a bond given under that statute, conditioned that the treasurer shall faithfully and impartially discharge all the duties of his office, was a good statutory bond. State of Ohio v. Findlay, 10 Ohio, 51; Gardner v. Goodyear, 1 Ohio, 170; Bentley v. Dorcas et al., 11 Ohio St. 398; Propeller Agents v. Wick & Morgan, 12 Ohio St. 335; Creighton v. Harden, 10 Ohio St. 579.
    It is claimed in the argument that the bond recites that Gearhart was the administrator of the personal estate of Thresher only. There is no such thing known to the law as an administrator of personal estate only.
    Section 1 of the administration law of 1840 provides (S. & O. 567), “ That upon the decease of any inhabitant of this state, letters testamentary, or letters of administration, on his estate shall be granted,” etc.
    The term “ estate ” includes all of the decedent’s assets, real as well as personal.
    But counsel for the plaintiffs in error claim that real estate is not assets, and cite some authorities to sustain this proposition. Among them, he cites section 531 of Story’s Eq. Jur., as follows: “ In an accurate and legal sense, all the personal property of the deceased, which is of a salable nature and may be converted into ready money, is deemed assets.” But the residue of the same section reads as follows: “But the word (assets) is not confined to such property, for all other property of the deceased, which is chargeable with his debts or legacies, and is applicable to that purpose, is in a large sense assets.”
    Judge Swan, in his Manual for Executors and Administrators, page 47, lays down the same rule, citing Touchstone^ 496; Williams on Ex’rs, 1012.
    But this is no longer an open question in Ohio.
    ' The Supreme Court of Ohio, in the case of Wade v. Graham et al., 4 Ohio, 126, say: “ The administrator is held liable on his bond . . for money arising from the sale of real-estate, as for the proceeds of the personal property. The proceeds of the former are to all intents and purposes assets as well as the latter. They are both appropriated in the same manner, and when land is turned into money, it is instantaneously assets, according to the legal acceptation of the term.”
    All the cases cited by counsel for plaintiffs in eiror, to show that this fund is not assets, are cases where the property in controversy was in no sense liable for the debts of the deceased, and do not come within the definition of assets as laid down by Judges Story and Swan as cited above.
    The duties of the administrator are pointed out by the statute.
    The court of probate in making the appointment confer no authority whatever. The administrator’s authority to act is given by and clearly defined in the statute.
    The recital in the bond that he has been appointed administrator of the personal estate, etc., should be rejected as surplusage. 1 Chit. PI. 229.
    The administration law (sec. 117, S. & C.) makes it the duty of the executor or administrator, as soon as he shall ascertain that the personal estate in his hauds will be insufficient to pay all the debts of the deceased, . . to apply to the Probate Court for authority to sell the rea estate of the deceased.
    Section 162 (S. & C. 598) of the same act provides that every executor or administrator shall be chargeable . . « with all the proceeds of real estate sold for the payment of debts or legacies, etc. And sections 176, 177, and 178 (S. & C. 602) provide for the bringing suits on the bond of the administrator.
    It is claimed, however, by the plaintiffs in error, that the plaintiff, Mary Erink, being the widow, she can not take as heir. It nowhere appears in this record that there were any other heirs than the widow, the plaintiff herein. And this court will not presume error for the sake of reversing the case. Coil v. Willis, 18 Ohio, 28.
    Code, section 28, provides that where a married woman is a party, her husband must be joined with her.
    Counsel for plaintiffs in error rely on section 131 of the administration act (S. & C. 591), which provides that the executor or administrator shall, when he is ordered to sell more land than is necessary to pay the debts of the estate, give bond, etc. But this section must, for a proper understanding and construction of the law, be taken in connection with sections 130 and 132. Section 130 shows when and in what eases such additional bond must be given. That is, when it is represented to the court in the petition that it is necessary to sell some part of the real estate of the deceased, and such partial sale will injure the value of the residue, . . then the court may order the sale of the whole of the estate; and in such cases, and in such cases only, by section 131, a new bond is required. Even if the court neglected its duty in not requiring a bond, the plaintiffs should not be compelled to suffer for the neglect or fault of the court. Comm’r of Insolvents v. Way et al., 3 Ohio, 103.
    The doctrine that the securities are held only to the letter of the bond is fully admitted, but it is claimed that it has no application to the case at bar, as the bond in this case is a good common law bond
    There is no case where a bond fairly and regularly executed, and comprising substantially all the requisites of the statute, has been adjudged void, because it departed in some one or more particulars from the exact words of the statute, authorizing it to be taken. Gardner v. Woodyear, 1 Ohio, 170; Collier v. Johnson, 7 Ohio, pt. 1, pp. 235, 239.
    This whole question, however, has been decided in the case of Wade v. Graham, 4 Ohio, 126, where it is expressly held, “ That the securities of an administrator are liable for the proceeds of real estate sold by an administrator under an order of court for the payment of debts.”
    To be sure the court hold, in the case of Baylies, J, etc. v. Chase, 1 Pick. 230, cited by counsel for plaintiff, that an administrator is not liable for refusing to pay debts of his intestate with the proceeds of real estate sold under a license for that purpose, upon a bond conditioned that after the payment of the debts he will secure the surplus on interest. But the court hold in that case that he is liable on his administration bond. See ease.
    The suit in that case was on a bond such as counsel for plaintiffs in error claim should have been given in this case.
   Day, J.

The questions to be considered in this ease are raised by demurrer to the answer. The action was brought to recover for the breach of an administrator’s bond, in not paying over to the plaintiff’ below the amount she claimed to be her distributive share of the estate of the intestate, remaining in the administrator’s hands after the final settlement of his account.

The plaintiff below averred, in her petition, that she was the widow of the intestate, and as such was one of the distributees of the estate, and entitled to recover one-half of four hundred dollars and one-third of the balance of the amount remaining in the administrator’s hands.

The defendants below averred, in their answer to the petition, that the personal property of the intestate was insufficient to pay the debts due from his estate; that after paying out all the personal assets, the administrator sold, by order of the court, real estate left by the deceased, for the purpose of paying the remaining debts of the decedent’s estate, and that there remained in his hands, after the final settlement of his account, of the proceeds of the sale of the real estate, the sum of $648.23, which was ordered by the Probate Court to be distributed according to law.

Was this answer a sufficient defense to the claim made in the petition ? To answer this question, we must ascertain who arc entitled, “according to law,” to the surplus of the proceeds of the sale of the real estate remaining in the hands of the administrator on the final settlement of his account.

Section 155 of the “ act to provide for the settlement of estates of deceased persons,” provides that “in all cases of sale by an executor or administrator .... of real estate of the deceased, under an order of court, . . . the surplus of the proceeds of the sale, remaining on the final settlement of the account, shall be considered as real estate, and shall be disposed of accordingly.”

From the facts stated in the answer, admitted by the demurrer to be true, it is clear that the money, claimed in the petition, is required by the statute to be “ considered as real estate,” and is to be “ disposed of accordingly.”

Regarding this surplus fund in the hands of the administrator as real estate, was the plaintiff below entitled to recover upon the ease made in the pleadings ? If not, the judgment rendered in her favor was erroneous.

Her right to recover is based solely on the ground that she was the widow of the deceased. The statutes in force at the time of his decease (1851) gave her no right to this surplus, considered as real estate, unless there was a failure of kin of the intestate, of which there is no pretense in the petition. On the contrary, she only claims in her petition to be one of the distributees of the fund; and it is noticeable that she bases her claim upon the statute relating to the widow’s distributive share of the personal estate of the deceased.

The only interest she had in the real estate of the deceased was that of dower, and she makes no claim in her petition based on that right. For aught that appears, her dower had been assigned, or the land may have been sold subject to her dower.

The ease made in the petition is framed entirely upon the idea that th'e surplus, arising from the sale of real estate, is a part of the personal estate of the intestate; whereas, the statute declares that it “shall be considered as real estate, and shall be disposed of accordingly.”

The petition, in the light of the facts stated in the answer, fails to show that the plaintiff was entitled, in any capacity, to any portion of the surplus of the proceeds of the real estate in the hands of the administrator; therefore, no breach of the bond is shown in not paying to the plaintiff a part of the fund.

It follows that the Court of Common Pleas erred in sustaining the demurrer to the answer, and in rendering judgment for the plaintiff in the action. The District Coui't therefore erred in affirming the judgment of the Common Pleas. Both judgments must be reversed, the demurrer to the answer overruled, and the cause remanded to the Common Pleas for further proceedings.

This disposes of the case without deciding the question, whether a refusal to pay the fund in the administrator’s hands to the parties entitled to receive it, would be a breach of the bond on which the action is brought. It is not only unnecessary to consider the question in this case as it now stands, but it would be of questionable’propriety, since the parties interested in sustaining the affirmative of the proposition are not before the court.  