
    *Morrow’s Adm’r v. Peyton’s Adm’r and Others.
    February, 1837,
    Richmond.
    Co-administrators — Joint Bond — Liability on. — Where two administrators execute a joint administration bond, each is a surety for the other; and if one commit a devastavit, the other is chargeable, but only as surety, and pari passu with the other sureties in the bond: dissentiente Brooke, J., who held, that for a devastavit by one administrator. the other is not responsible either as principal or surety.
    Administrators — Same Person Administrator of Debtor and Creditor Estate — Liability of Sureties. —Where the estate of one decedent is indebted to that of another, and the same person is administrator of both, and wastes assets of the debtor estate, which he was bound, but has failed, to pay over to the creditor estate, the sureties for his due administration of the creditor estate are liable for such default and devastavit.
    Same —Official Bond — Form- Material Defect. — After tlie death of an executor who had qualified as such, the court grants administration of the testator’s unadministered estate, hut the hond taken from the administrator Is In the form of a bond for administration de bonis non of an intestate, not in the form of a bond for administration de bonis nonfvith the will annexed of a testator: Veld, the bond is void.
    Administrators — What Constitutes a Payment by - Case at Bar. — An administrator makes a verbal promise to pay the agent employed to collect a debt from the estate, that If he will pay the amount to his principal, the administrator will repay to him with interest: tlie agent accordingly pays his principal the debt, and the administrator after-wards refunds to the agent the sum paid, with interest: Held, the payment by the agent was a payment by the administrator, for which he is entitled to credit at the date thereof, whatever be the time at which the amount was repaid to the agent.
    John Morrow died intestate in the latter part oí the year 1819, and Robert Worthing-ton and John T. Cookus obtained letters of administration on his estate from the court of Jefferson county. They entered into bond, together with William Butler, Daniel Buckles, John Downey and William Grove, the obligors binding themselves and each of them, their and each of their heirs, executors and administrators, jointly and severally. The bond is in the penalty of 12,000 dollars, with condition “that if the above bound Robert Worthington and John T. Cookus, ^administrators of all and singular the goods, chattels and credits of John Morrow deceased, do make or cause to be made a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased &c. and the same goods &c. of the said deceased do well and truly administer &c. then this obligation to be void and of no effect, or else to remain in full force and virtue.” This bond bears date the 27th day of December 1819,
    The intestate John Morrow had been, in his lifetime, appointed one of the executors of a certain Robert Rutherford, and qualified as such in the court of Jefferson county on the 12th day of June 1805. The other executors named in Rutherford’s will never qualified, and Morrow was, until his death, the sole acting executor. On the 15th of October 1819, at which time Morrow died, he was a creditor of his testator’s estate to the amount of 9008 dollars 90 cents, as appeared by accounts of his transactions as executor, settled before commissioners appointed by the court of Jefferson county, the last of those accounts being rendered after Morrow’s decease, by Worthington and Cookus his administrators; who had also qualified, on the 27th day of March 1820, as representatives of Robert Rutherford deceased. The order entered by the court of Jefferson county is, that “administration de bonis non with the will annexed” (of Robert Rutherford) “is granted unto Robert Worthington and John T. Cookus, they having complied with the law.” But the bond entered into by Worth-ington and Cookus is not in the form which the statute requires where administration is granted with the will annexed, 1 Rev. Code, ch. 104, § 21, p. 380, bat in the form prescribed for the bond of a common administrator de bonis non; Id. 35, p. 383. The will of Robert Rutherford, after providing in the first place for the testator’s funeral, directs, secondly, that all his just debts be paid so soon as his executors shall be enabled *to settle and discharge the same; and then, after various devises and bequests, the will contains the following clause: “And whereas it may be necessary for the payment of my just debts and the several legacies herein before bequeathed, that some part of my estate should be sold by my executors, it is my will and desire, and I do hereby empower and direct my executors or such of them as shall think proper to act, to sell and dispose of any part of mjr estate, real or personal, and to make deeds for any part thus sold by them for the purposes aforesaid.”
    Worthington administrator of Morrow settled an account of his administration of that decedent’s estate, from the time of hús qualification down to the end of the year 1821, before commissioners appointed by the court of Jefferson county; by which settlement Worthington appeared to be a creditor of the estate to the amount of 221 dollars 81 cents. And Cookus the other administrator of Morrow settled, before commissioners appointed by the same court, an account of his administration from his qualification until the 24th of April 1824, at which date he appeared to be a creditor of the estate to the amount of 2038 dollars 42 cents. In neither of these accounts is there any credit to Morrow’s es.tate for any part of the debt due from Rutherford’s estate.
    In 1830, William I/. Clark administrator of Susan Peyton, and also administrator of Francis A. Peyton, the said William E-Clark and Louisa his wife, and Elizabeth C. Peyton, instituted a suit in the superiour court of chancery holden at Winchester, against the said Worthington and Cookus administrators of Morrow. The bill was filed in August 1830. It sets forth, that on the 1st day of May 1830 a decree had been rendered in the said superiour court of chancery against the said Worthington and Cookus as administrators of John Morrow, and against other defendants, in a suit wherein the present complainants were also parties, by which decree the Administrator of Susan Peyton recovered the sum of 1636 dollars 29 cents, the administrator of Francis A. Peyton recovered the sum of 409 dollars 5 cents, the said William E. Clark and wife recovered the sum of 409 dollars 5 cents, 'the said Elizabeth C. Peyton recovered the sum of 5787 dollars 91 cents, and the said Elizabeth C. Peyton, for the use of James Keith, recovered the sum of 409 dollars 5 cents; for which several sums the plaintiffs respectively had issued writs of fieri facias, which had been returned no effects, and had never been satisfied either in whole or in part. The bill then charges, that the said Worthington and Cookus administrators of Morrow have abundant assets to satisfy the said executions. That the said Morrow left considerable personal property, and large and numerous debts due him, all or great part of which came to the hands of his administrators ; and in particular, they received large sums on account of a debt which they claimed as due to their intestate from Robert Rutherford’s estate. That the said administrators had disbursed large sums to the distributees of their intestate, and in payment of debts of a dignity infe-riour to that of the plaintiffs’ claim, which Worthington well knew to be a demand against his intestate as one of the sureties in the bond given by the administrators of John Peyton deceased, and for which a suit against John Peyton’s administrators was pending at the time when Worthington received the assets which are credited in his account as administrator. The bill surcharges and falsifies that account, and the account settled by the co-administrator Cookus; calls on the defendants to disclose and account for the assets of their intestate; and prays a personal decree against them, inasmuch as they have wasted the assets.
    The decree and executions referred to in the bill were exhibited therewith.
    *The sureties in the bond given by Worthington and Cookus as administrators of Morrow were not made parties to-the suit.
    Worthington and Cookus answered separately, denying the devastavit charged in the bill, and insisting on the correctness of the accounts settled by them respectively.
    The court, on the 21st December 1831, made an order that the defendants render an account of their administration before a commissioner, and answer on oath such questions touching their administration as-should be put to them by the plaintiffs or the said commissioner; that the plaintiffs have leave to surcharge and falsify the ex parte settlements made by the administrators in the court of Jefferson county; and that the commissioner state specially the mode in which the assets of said Morrow’s estate had been retained or disbursed, and what portion of the said -assets had been retained or disbursed in the payment of debts which were not of the dignity of specialty debts, and if any portion of said assets had been disbursed in the payment of specialty debts, in that event to state the said debts, and whether they were prosecuted by suit or not, and if not, at what time they were paid.
    The commissioner reported three separate accounts, under this order. 1. An account of the defendants jointly, as administrators of Morrow, shewing a balance due the estate on the 1st of June 1832, of 6688 dollars 19 cents, principal and interest, with interest from that date on 3750 dollars 55 cents. 2. A separate account of Robert Worthing-ton as administrator of Morrow, shewing a balance due the estate on the 1st of June 1832, of 2258 dollars 41 cents principal and interest, with interest from that date on 1285 dollars 67 cents. 3. A separate account of John T. Cookus as administrator of Morrow, shewing a balance due the administrator on the 1st day of June 1832, of 4345 dollars 3 cents principal and interest, with interest from that date on 3087 dollars 38 cents.
    *Both the plaintiffs and the defendants filed various exceptions to the commissioner’s report. The court sustained some of the exceptions of each party and overruled others, and recommitted the report to the commissioner. The . only exceptions taken to this account which it is necessary to notice, were, 1. An exception by the plaintiffs, that the commissioner had not charged the defendants with the amount received by them as administrators de bonis non of Robert Rutherford deceased, whose estate was largely indebted to that of their intestate Morrow, and appeared to be chargeable with no other debt. Upon this exception the court decided, that the defendants should be charged with any moneys in their hands as administrators of Rutherford, applicable to the payment of his debt to Morrow ; that they render before the commissioner, on oath, an account of the moneys in their hands, or in the hands of either of them, as administrators of Rutherford; and that they be charged with the amount, unless they shew others debts having priority. 2. An exception by defendants to the date of the following entry among, the debits of the joint account: “1828, October. Cash paid on account of Merritt’s debt, $629.41.” Por as muchas the said money was in truth paid on the 27th day of May 1823, instead of October 1828. Upon this exception, the court directed the commissioner to enquire whether there was any error in the date of the said payment. And then the court, proceeding to give general directions to the commissioner, ordered that the defendants receive credit for all sums paid away in discharge of simple contract debts “before the service ■of the subpoena in the case of Grayson against Clark,” (the suit which resulted in the decree referred to in the plaintiffs’ bill and exhibited therewith).
    The second report returned by the commissioner contained an account of the defendants jointly, as administrators of Morrow, with an account of Robert Worthington *as administrator de bonis non* of Robert Rutherford, and a mass of documents and depositions relating to various items of account. The account of the defendants as administrators of Morrow brought down their transactions to the 1st of January 1833, at which date there appeared a balance in favour of Morrow’s estate, amounting to 3483 dollars 95 cents of principal, and 2240 dollars 29 cents of interest. The last item of credit to the estate was entered in the following terms: “By balance in the hands of Robert Worth-ington the acting administrator of Robert Rutherford deceased, on a settlement of his account with the said estate herewith returned, and which is credited in this account by direction of the court, in part discharge of a balance due from the estate •of said Rutherford to the estate of John Morrow; principal4168 dollars 27 cents, interest 2363 dollars 40 cents.” And without this credit to Morrow’s estate, the account shewed that there would have been a balance due the administrators of Morrow, on the first day of January 1833, of 684 dollars 32 cents principal, and 123 dollars 11 cents interest. In this second report of the commissioner, the item of debit for the payment on account of the Merritt debt appeared in these terms: “1823, May 27. Cash paid George Hageley amount of debt due from colo. Morrow to John Merritt, $830.” By the evidence adduced before the commissioner in relation to this item, it appeared, that on the 16th day of August 1814 John Morrow, the intestate of defendants, executed to John Merritt two notes under seal, each for the sum of 529 dollars 79 cents, the first payable on the 1st day of April 1816, and the other payable on the 1st day of April 1817. On these notes there were indorsed various receipts, of which the last four are signed “George Hageley for John Merritt;” the dates and amounts specified in the receipts being as follows: “1818, January 10. $400.-1819,
    February 6. $111.67 cents. — 1828, ^October 22. Received from John T. Cookus $629.41 cents. — 1830, June 7. Received of John T. Cookus $257.12 cents. — • 1830, June 16. Received from John T. Cookus $252, in his own note payable on the 1st of October next. — 1832, June. Received from John T. Cookus administrator of John Morrow deceased $20, being the balance due on John Morrow’s two notes to John Merritt of Ohio.” The deposition of George Hage-ley was taken, and returned by the commissioner with his report. It is in the terms following: “In the spring of 1823, John Merritt requested me to collect the money due him from the estate of colo. John Morrow deceased. I accordingly called on John T. Cookus one of the administrators of said Morrow’s estate, for the payment of said notes, who had promised to pay the said notes whenever called on. When I made this call, he the said Cookus had not the money at the time. I then told him I had money to spare, and that I would pay the balance due Merritt on colo. Morrow’s notes, provided dhat he the said Cookus would refund me my money with interest thereon, when called for by me, which said Cookus agreed to do. I then, on the promise of said Cookus, paid to Isaac Reynolds of Baltimore, on the 27th of May 1823, the sum of 830 dollars, according to the instructions of said John Merritt.”
    The parties filed numerous exceptions to this second report of the commissioner. Among those filed by the plaintiffs was one in these terms: “4th exception. To item ‘1823, May 27. Cash paid George Hageley amount of debt due from colo. Morrow to John Merritt, $830.’ Because there was no payment made to said Hageley, and the receipts on the bonds, signed by said Hage-ley, shew that the payments were made after the service of the subpoena in the suit of Grayson against Clark. ’’ This exception the court overruled. The defendants excepted to the manner in which the commissioner had taken the account, because he had made it a joint account, instead of separating the transactions of the administrators, and ascertaining the account with each of them severally. And the defendant John T. Cookus excepted to his being charged with any sum of money which appeared to have come to the hands of Robert Worthington from the estate of Rutherford, because the said Cookus, having received no part of that estate himself, could only be charged as surety of Worth-ington, if chargeable at all; in which case the plaintiffs were bound to convene the other sureties in the bond given for the due administration of Rutherford’s estate, that each might contribute his just proportion of any deficit which might be established against Worthington ; but as surety the said Cookus was not liable at all, the bond being void. Upon these exceptions the court said, that the questions presented by them were affected not by the nature of the bond which the defendants gave as administrators of Rutherford (though that too was joint) but by the nature of the bond which they gave as administrators of Morrow. That the condition of that bond was, that the defendants should administer the estate according to law: that they were looked upon as the principals, and those who were induced to become bound with them never contemplated their own liability as long as either principal was solvent. Therefore that the administrators must be considered as a unit, responsible for each other’s acts, and as principals bound for the balance due from either, and not as mere sureties. And the court accordingly overruled the exceptions.
    Other exceptions taken by both parties were sustained. And the report being recommitted to the commissioner, to be reformed according to the opinion of the court on these last exceptions, the reformed report shewed a balance due the estate of John Morrow from his administrators, on the 1st day of January 1833, of 6123 dollars 81 cents, with interest on 3947 dollars 38 cents part thereof, from that date until paid. The court, ton the 14th of June 1833, rendered a decree against the defendants for the amount appearing due by the reformed report, as aforesaid, to be levied of the proper goods and chattels of the said defendants. And on the petition of the defendant John T. Cookus, an appeal was allowed him. "
    Leigh, for appellant.
    Cooke and Johnson, for appellees.
    
      
      Co administrators — Joint Bond — Liability on. — Where a bond, upon which several persons are bound, by its terms, makes them responsible for each other, each one must be regarded as a principal, so far as his own acts are involved and the remaining obligors are his sureties. Thus, where two administrators execute a joint administration bond, each is liable as principal for his own acts and as surety for the acts of his companions; so if one commits a devastavit, the other is chargeable for his acts as surety. This doctrine laid down in the principal case has been again and again recognized and followed in Virginia. See, citing the principal case. Caskie v. Harrison, 76 Va. 93; Cox v. Thomas, 9 Gratt. 317, 319; Peale v. Hickle, 9 Gratt. 444; McCormick v. Wright, 79 Va. 533; foot-note to Boyd v. Boyd, 3 Gratt. 115; Sands v. Durham, 99 Va. 267, 38 S. E. Rep. 145.
      See further, on this subject, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
      Administrators — Liability for Wrong of Co-administrators. — It is well settled that one administrator cannot be charged with the wrong of his companion, or be made further liable than for the assets which came to his hands. Frazer v. Bevill, 11 Gratt. 15, citing the principal case.
    
    
      
      Administrators — Same Person Administrator of Debtor and Creditor Estate — Liability of Sureties.— Where the estate of one intestate is indebted to the estate of another, and the same person is administrator of both, and wastes assets of the debtor estate, which he ought to have paid over to the creditor estate, the sureties for the due administration of the creditor estate are liable for the misappropriation. The principal case is cited with approval for this rule of law in Smith v. Gregory, 26 Gratt. 260, 261, 265; Caskie v. Harrison, 76 Va. 91; Steptoe v. Harvey, 17 Gratt. 300, 301. But, the sureties for the due administration of the debtor’s estate are also liable for such waste. Morrow v. Peyton, 8 Leigh 54, 76, 77, 78; Smith v. Gregory, 26 Gratt. 260.
      This rule also hold good where a person is acting in the dual character of administrator and guardian. Smith v. Gregory, 26 Gratt. 260.
      Same — Same—Same—Transfer of Assets — Election.— If the same person be the personal representative of two estates, one of which is debtor to the other, he may retain out of the effects of which he is possessed as the representative of the debtor, to satisfy the debts due to him as the representative of the creditor. Green v. Thompson, 84 Va. 389, 413, 5 S. E. Rep. 507, citing the principal case with approval. See also, foot-note to Harvey v. Steptoe, 17 Gratt. 289. But, in such case, the time at which the transfer of assets should be made will depend upon the condition of the debtor estate and the estate of the administration; accordingly, the court will not shift the responsibility of one set of sureties to the other, without some act or declaration on the part of the representative indicating an intention to transfer the assets. Harvey v. Steptoe, 17 Gratt. 301, citing the principal case. In such case, transmutation of possession by operation -of law has been often repudiated in Virginia. Smith v. Gregory, 26 Gratt. 263. citing Morrow v. Peyton, 8 Leigh 54; Swope v. Chambers, 2 Gratt. 319; Harvey v. Steptoe, 17 Gratt. 289, 300, 301.
      And in Board v. Cain, 28 W. Va. 770, it is said; “A fiduciary cannot transfer his mere indebtedness in one capacity to himself in another capacity, so as to exonerate his securities in the one and throw the burden upon his securities in the other. To make the transfer valid it must consist of something more than a naked liability; ilmust be substantial assets, if made by an insolvent fiduciary. (Smith v. Gregory, 26 Gratt. 248; Phillips v. Manning, 14 Eng. Ch’y R. 309, 315.) But if the fiduciary is solvent and able to pay over the funds, all that is necessary is for him, when he is ordered to pay it over, or when the law would authorize him to pay it over to a third person holding the other fiduciary character, to make his election and manifest it by some act, direction or admission. (Swope v. Chambers, 2 Gratt. 319; Myers v. Wade, 6 Rand. 444; Broadus v. Rosson, 3 Leigh 12; Morrow v. Peyton, 8 Leigh 54; Pifer’s Estate, 15 Pa. St. 533; Gottsberger v. Taylor, 19 N. Y. 150; Pratt v. Northum et al., 5 Mason 108.)” To the same effect, see the principal case cited in Gilmer v. Baker, 24 W. Va. 92.
      The principles laid down above apply as well where the same person is representative of an estate 'and guardian of a beneficiary, as where the same person is representative of two estates, one of which is debtor to the other. See Harvey v. Steptoe, 17 Gratt. 301; Smith v. Gregory, 26 Gratt. 248, 260, 263, 265.
      In Harvey v. Steptoe, 17 Gratt. 301, it was held that the case at bar did not fall within the reasons governing the decisions of Morrow v. Peyton, and Myers v. Wade, 6 Rand. 444.
      See the principal case also cited in Perry v. Campbell, 10 W. Va. 233; Glasgow v. Lipse, 117 U. S. 327, 9 Sup. Ct. Rep. 761.
    
    
      
      Statutory Bonds — Failure to Conform to Requisitions of Statute — Effect.—in Gibson v. Beckham, 16 Gratt. 321, it was held that where a court or officer lias authority or capacity to take a bond and makes a mistake by omitting some condition prescribed, or inserting a condition not authorized or illegal, unless the statute by express words, or necessary Implication, makes it wholly void, the bond is not voiii; and it may be sued on, as far as the conditions are good, as a statutory bond. Ai.i.un, P.. speaking for the court, said : Morrow v. Peyton, 8 Leigh 54. does decide the broad proposition that a bond not conforming to the requisitions of the statute was void as to all purposes. The case even supposing it should be recognized as a binding authority, would not aftect materially the present case, for here the grant was to an administrator e, t. a,, and the bond is such as the law requires in such case. In Morroe v. Peyton, after the death of an executor who had qualified, administration was committed to an administrator d. {/. n. c. t. «., but the bona was in the form prescribed for administration (i. h. n. of an intestate, instead of an administration d. 6. n. c. t. a. The form of the bond adopted did contain a condition for the benefit o1 creditors ; and creditors were suing : but the court In tlie decree says that the administration bond was void on the authority of Frazier v. Frazier, and the securities were not bound by it. Tucker, P., towards the conclusion of his opinion merely remarks on that branch of the case, that the bond was void on the same authority. The great question in that case was whether, when two administrators execute a joint administration bond, one is surety for the other. Upon this proposition the three judges differed, each delivering a separate opinion, — Brook-enmiouoh and Tucker holding the affirmative, Brooke the negative. On the other parts of the case the other judges concurred with Tucker. We have seen all that he said on the question under consideration, and it is clear that he was misled from a hasty-consideration of the case of Frazier v. Frazier (2 Leigh 647). It certainly did not decide that the bond was void or invalid for any pnrpose provided for in the condition. But the decision and opinion of Green. was carefully restricted to the case of the legatee suing, andfor whom no provision had been made. Had not the court in Morrow v. Pey-ton been misled by this mistake in the effect of the decision in Frazier v. Frazier, I do not for a moment suppose they would have decided that such a bond was void entirely and the sureties not hound by it. “ It is manifest therefore that this court in Morrow t>, Peyton, intended to place their decision on this point upon the authority of Frazier v. Frazier alone, supposing through inadvertence, and because the novel and interesting question as to the liability of the executors under the joint bond had diverted attention from the minor questions arising on the record, that Frazier v. Frazier ruled this branch of the case, f do not therefore regard Morrow v. Peyton as an authority on this proposition.” The principal case was also cited In State v. Purcell, 31 W. Va. 67, 5 S. E. Rep. 313.
      See further, monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 184 : monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
    
      
      Administrators — What Constitutes Payment by.— See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   _ BROCKENBROUGH, J.

The main ques-_ tion referred to us for decision is the extent of the liability of the administrator Cookus for the devastavit of Worthington the other administrator. They were both administrators of Morrow, and entered into one bond with four sureties, being all jointly and severally bound thereby. The question discussed here was whether Cookus was a surety equally bound with the other sureties for Worthington’s separate acts, and they equally bound with him, or whether he was primarily bound as surety, and the others only secondarily bound, that is, bound only in case Cookus should prove unable to pay for Worthington’s devastavit. If they were all equally bound as sureties, then the other sureties should be made parties and compelled to contribute; otherwise not.

The circuit court decided that “the two administrators are looked on as the principals, and those who are induced to become bound with them never contemplate their own liability as long as either principal is solvent; and that the administrators must be considered as a unit responsible for each other’s acts, and as principals bound for the balance due from either, and not as mere sureties.”

I do not think that this intimate union and identity of the two administrators is countenanced by the law, and the undertaking of the parties. The duties and obligations of administrators are very much the same with *those of executors ; and with respect to them, it has long ago been established that “one executor shall not be charged with the wrong or devastavit of his companion, and shall be no farther liable than for the assets which came to his hands.” 3 Bac. Abr. 31. In a court of law, the bond which the'administrators enter into is the only evidence of the respective obligations of the administrators and their sureties, and will also govern in a court of equity, unless there be some other contract between the parties, by which the relation of the principals and sureties towards each other is varied. What, then, is the obligation of the parties by the administration bond which the statute requires them to give? We must adopt the rule reddendi singula singulis, and construe the bond distributively, with reference to the joint acts and separate acts of the administrators. The penalty of the bond binds the administrators and the sureties by name, in a certain sum, but the condition names the administrators only. The penalty binds A. B. C. and D. and the condition is that A. and B. the administrators shall well and truly administer &c. Now, so far as A. and B. jointly administer, they are both bound as principals for their joint acts, and C. and D. are bound as sureties for those joint acts. For those acts, although C. and D. are equally bound with the administrators to creditors, legatees &c. yet, as between themselves, A. and B. shall both and each reimburse to C. and D. whatever these last ma3 have paid on account of their joint mal-administration.

But how is it as to their separate administration? For A.’s separate administration, he alone is bound as principal, because he alone having received the assets, his companion is not chargeable with them by the law. Yet B. is bound by the bond for A.’s administration of all that may come to his hands, and as he is not bound as principal, it follows of course that he is bound as surety. C. and D. are likewise bound by the bond as *sureties that A. will administer well and truly all that may come to his hands. Then B. C. and D. are all bound as sureties that A. will well and truly administer those assets which may separately come to his hands. Being all three bound as sureties, they are bound equally, and each is entitled to contribution from the others, according to the principles of equity. So A. C. and D. stand in the relation of cosureties for the separate administration of B. and are entitled to contribution from each other.

So far then as Worthington received a large amount of assets, and wasted them without the concurrence of Cookus, this last is bound for such devastavit as surety only, and is entitled to contribution from the other sureties, "who ought to be made parties.

On the other questions discussed I also concur in the opinion of the president.

BROOKE. J.

I concur entirely in the opinion to be delivered by the president, except that part of it that treats John T. Cookus one of the administrators of John Morrow, as a cosurety' with the other sureties who executed the bond, for the faithful administration of the estate of Morrow. I cannot think that by signing and sealing the bond which was required by the act of assembly, as principal, by a construction of the bond according to the principles of the common law, and not according to the principles of the act,’ he can be considered as a surety for the due administration of the assets. As principal he was not liable for any of the acts of his co-administrator in which he did not participate. 3 Bac. Abr. pp. 30, 31. Executors and administrators. D. and the cases cited in the note. Nor is there any thing in the act under which the bond was taken, to change the relation in which he stood to his co-administrator at the common law. On the contrary, the administrator is not looked to by the act as surety *for the faithful administration of the assets. If he is the next of kin to the intestate, and can give security for the faithful administration of the assets, he is entitled to the administration under the act, though he may be a pauper. The policy of the act does not look to his solvency, but to the relation in which he stands to the intestate, and his capacity io administer the assets. That he is not looked on as a surety for the administration of his co-administrator, I think is manifest from other provisions of the act. The 37th section of the act, 1 Rev. Code, ch. 104, p. 384, makes the justices liable if they take insufficient security in the administration bond; certainly not regarding the co-administrator as a surety, to whom, if a pauper, and fit in other respects, and next of kin to the intestate, the justices are compelled to grant the administration. That he is not looked to as surety, is to my mind manifest from other considerations. If Cookus is to be treated as one of the sureties taken by the justices, and his co-administrator Worthington and the other sureties in the bond proved insolvent, and the sureties insufficient at the time they executed the bond, Cookus would be responsible for the whole amount of the waste of his co-administrator, and if he too, at the time administration was granted to him, was insolvent, the justices would be responsible, though as principal no responsibility attached on him for the rnal-administration of Worthington his co-administrator. By the 38th section of the act, 1 Rev. Code, p. 384, the co-administrator is certainly not regarded as a co-surety with others. It declares that when sureties for executors or administrators conceive themselves in danger, they may apply for counter security; certainly not meaning the principals in the bond. It would be strange if a co-administrator was to come into court, or both '•ogether, to require additional security; and yet if they are cosureties by construction of the bond, they might make the application. *1 think it was not intended by the act to change the relation of one co-administrator to another; not to regard him as surety, but as a principal responsible for his own acts only, and the sureties to the bond as responsible for the acts of both or either of the co-administrators. That if sued at law on the bond they must be considered all as principals, according to the common law is true, but not according to the principles of the statute. According to those principles, if the suit was brought at law on the bond, and one of the administrators, upon the proofs, was found to be innocent of all waste or mal-adminis-tration, I think there is nothing so inflexible in the common law as to subject him to a judgment. The common law, on the contrary, is said very wisely to mould itself to the exigencies that arise in the contracts and engagements of persons; and I see no inconvenience, in this case, in adapting its judgment to the case (especially when it accords with the sound construction of the law under which the bond was taken) and instead of rendering the judgment against all, rendering it against the responsible parties alone.

TUCKER, P.

The question of most importance in this case is the extent of the responsibility of Cookus, one of the administrators of Morrow, for the devastavit of his co-administrator Worthington, who upon the settlement of the estate account proves to be largely in arrears to his intestate’s estate. It is contended that he executed an administration bond jointly with the administrator Worthington, and that he has thereby made himself responsible for his defalcations, without being entitled to aid or contribution from the sureties in the bond. In the examination of this question, I shall not attempt to follow the counsel in the various arguments which have occupied several days on this new and interesting topic, but .shall endeavour to present the reasons *in support of my opinion in as condensed a form as I find practicable. I shall conduct the enquiry tinder two heads, into which the subject naturally divides itself: 1st. Is Cookus to be considered .in this bond as principal in relation to Worthington’s transactions, or only as surety? and 2ndly, if only as surety, are the other sureties to be regarded, in reference to Worthington’s transactions, as sureties for Cookus, or only as co-sureties with him for Worthington?

First then, is Cooluis to be looked upon in this bond, in reference to Worthington’s transactions, as principal, or only as surety? By the common law, executors and administrators are all considered as having a joint interest in the property of the testator or intestate. They are esteemed in law but as one person representing the testator, and the acts of an3T one relating to the delivery, gift, sale, payment or release of the goods, are deemed the acts of all; for they have a joint and entire authority over the whole. 3 Bac. Abr. 80. Nevertheless it is equally clear that one executor or administrator shall not be charged with the wrong or devastavit of his companion, and shall be no farther liable than for the assets which came to his hands. 3 Bac. Abr. 31. Jt is thus manifest that while the law recognizes the joint rights of co-cxecutors, it does not recognize a joint responsibility. And this is obviously the case, whether executors qualifj' jointly or separately; for the joint character of their interest arises out of the will which creates them) and does not merely grow out of their qualification : and in like manner, whether they qualify separately or together, their responsibilities are the same for the acts of each other; for if even the act of the testator in uniting them in the fiduciary character has not the effect of so uniting them as to make one responsible for the acts of the other, the simple acl of granting joint letters testamentary cannot have that effect; since the probat consists of nothing but the proof of the will and the oath *of the executor, to which by our law the execution of a bond is superadded, with a few exceptions. Where no such bond is given, as in England, New York, Pennsylvania &c. there can be no pretence for inferring, from the single act of probat, the creation of a farther responsibility than the acceptance of a joint trust would of itself create; and we know that joint executors are not responsible for each other, unless by their own act they adopt the act of their fellows, or put it in their power to receive and waste the estate. The same principles apply, X conceive, where executors enter into a joint bond, and also to the case of joint administrators, unless in these cases the bond can create a larger responsibility; which'must therefore be the next subject of our inquiry.

We have already seen that executors are not farther liable than for the assets which come to their hands: and in the same passage we learn, what every practitioner well knows, that where an action was brought against two executors, and the jury found that the two and another were made executors, and that the third wasted the assets to the amount of £600. and died, and only £16. came to the hands of the two others, the court held that they should be chargeable for no more than the £16. and judgment was entered accordingly. It ' is obvious, then, that as there is only a judgment for £16. against the survivors, an action of debt suggesting a devastavit can only lie against them for that sum, although in point of fact £600. more of the estate has been wasted. Ror that sum only, therefore, will the judgment in devastavit be entered. Now until within a few years no action could be brought on the bond until a recovery in an action of devastavit. Suppose then, before the amendment of the law as to this matter, a suit had been brought on the bond. The breach assigned could only have been in not paying the ,£16. An assignment of breach that the surviving executors *had not paid the £600. wasted by the third executor could never have been sustained, because there was no precedent judgment in devas-tavit against them for that sum. Hence it is obvious that as the law formerly stood, the co-executor was not made responsible, qua executor, for the act of his fellow, by the operation of the bond; and I do not perceive that the change of the law makes a difference, .For even now the judgment on the bond could only be against the two executors for the £16. since the first judgment against them could be for that sum only, to be levied in their hands. So that it is manifest that the execution and existence of the bond can in no wise add to the responsibility of the executors for each other, or charge them farther than they would be chargeable upon common law principles, for the acts of each other.

It has been attempted, however, to shew that to the plea of plene administravit by the executor who is not in default, it would be competent to reply that the parties had executed a joint bond, and were therefore bound for each other’s acts.

This position, it must be conceded, is altogether new, and, as it appears to me, is entirely inadmissible. I have never seen the precedent of a replication of this description, nor heard of its introduction into any course of pleading. Had the principle been true, it must long since have been established in Great Britain, where innumerable controversies are hourly arising as to the responsibility of one administrator for another. But in truth it is no answer to the plea, nor is the principle assumed sustained by the true character of the bond. It is no answer to a plea alleging that A. has fully administered, to aver that B. has not fully administered v and hence such a replication would be bad upon demurrer. Nor is the principle of it sustained by the true character of the bond. Admitting that the bond makes each responsible for the other, jret there is nothing in it *by which either makes the acts of the other his own. By what strained construction can we make the mere execution of a bond binding the parties to a just administration, an approval, by anticipation, of all the acts of waste, mal-adminis-tration and peculation of which either may be guilty? With what justice can we deduce from the execution of the bond an acquiescence, and indeed a participation, a priori, in a fraudulent release of a debt made by Worthington without the knowledge of Cookus, or in his fraudulent purchase of the merchandize of his stores with the bonds or the property of the estate? Surely such a principle of construction would not only be in violation of the true character of the contract, but a gross injustice, a violent fiction invented for the purpose of casting a burden upon the innocqnt and unoffend-ing.- On the other hand, if the co-executors are held responsible indeed for each other’s acts, but are not regarded as approving by anticipation and assenting to all the acts of each other, the purposes of justice and the object of the contract are fully answered. Their responsibility for each other, ex vi termini, implies that he who is in no default stands but as the sponsor or surety for the other; whereas if they are held to join by anticipation in all the acts of each other, they are made to stand as principal in acts in which they have had no participation and no knowledge; and are thus made actors in matters in which they have had no action by themselves or their agents. They can only stand in the relation of sureties or of principal; and they cannot be considered as principal, when the whole act is done by another, without their participation in person or by one acting under their authority: for it would be absurd to infer that by executing a bond for the faithful administration of the assets, an authority is given to waste the estate.

I did not understand mr. Johnson as insisting on this broad principle. I understood him to admit that coexecutors *are to be considered as sureties for each other, and not in the light of' principals as to each other’s transactions. This indeed is obvious from what has just been said, and is manifest where the executors alone have signed the bond. There, each stands as the surety of the other, and each is principal in relation to his own transactions. The law in fact knows no difference between them: equity only recognizes it. And whom does equity look upon as principal? Upon him who receives the money, — -who does the act, — -who gains the advantage or commits the wrong. The innocent, though responsible, is not considered a principal: he is only a surety. To test this, let us suppose that two executors join in an executorial bond without any other party to the bond, and one wastes the whole estate, and in an action on the bond the other is made liable. It cannot be questioned that he would have relief in equity, upon a bill against his fellow to compel him to reimburse him. Equity would hold him to be a surety only, and would relieve him accordingly.

If, then, two executors executing a joint bond without any othef party to the bond are to be considered as standing in relation to each other as principal and surety, each being considered as principal as to his own acts, and surety only as to the transactions of his companion; there is an end at once to the motion of identity as to their responsibility. There is an end at once to the notion that each is to be considered as fully bound by the acts of his companion as if he had joined in them, or as if they had been his own acts; and there is an end to the notion that in joining in a bond they are to be presumed to have designed to make themselves responsible qua executor, or in any other manner than as surety. And if this be so where they are the onl3r parties to the bond, how can the terms or meaning of the engagement be affected by others uniting in the bond? The co-executors must still stand as sureties for each *other, but as sureties only. And then we are brought to the consideration of the second question, whether the other sureties are to be regarded, in reference to Worthington’s transactions, as sureties for Cookus, or only as cosureties with him for Worthington? And here I am ready to admit that if Cookus had applied to any one of the sureties to join with them in the bond, and he’had declined unless Cookus would engage to stand between him and danger, there would be no doubt that Cookus would be bound to indemnify him, since he would thus be surety for Cookus, and not merely cosurety with him. But nothing of this kind appears. It does not appear that the sureties even joined upon his request. Non constat that they did not join at Worthington’s request; and however they may have joined, and at the request of whichever party, the3r must be presumed to have known that Cookus and Worthington stood only as mutual sureties for each other, and could only be bound as such. Knowing this, if they joined in the bond without an engagement that Cookus should stand between them and danger, Cookus does not lose his character of surety, nor is he to be considered as primarily liable, and the sureties only bound in the event of his insolvency. It was admitted in the argument that this doctrine of contribution is not to be regarded as matter of contract, but as resting on the equitable principle of equalizing a burden between those who are bound to bear it. It is thrown upon those who in justice and right ought to be subjected, and in the proportions in which they ought to be charged. Suppose, then, Worthington in this case had received and wasted 10,000 dollars, and that sum had been recovered, by a creditor, of B. one of the sureties. B. files his bill in equity against Cookus, who is also but a surety quoad Worthington’s transactions, to put the whole burden upon him. Both were equally liable at law; where then is B.’s superiour equity? He does not shew that his engagement was on the faith of *Cookus’s promise to save him harmless. His whole ground of equity is that Worthington, for whom he was surety, has wasted the estate, and he claims full indemnity from Cookus, who like himself is but a surety; who had no more power over Worthington than he had, and who was no more responsible for Worthington’s acts than he; since the responsibility of both arises from the same source — the execution of the bond. He does not then shew superiour equity, except for contribution to the amount of Cookus’s share of the burden. For this, and this only, is he entitled to relief. With these views of the question, I am clearly of opinion that Cookus is responsible only in the character of surety, so far as relates to Worthing-ton’s transactions, and is not primarily bound, but that the burden must be placed in equal proportions upon the shoulders of himself and the four sureties in the bond.

A doubt has been suggested whether Cookus is liable at all. I think it very clear that he is liable. There can be no question that he is liable in an action at law on the bond; and I certainly do not perceive what superiour equity he can have over the sureties, to entitle him to a discharge from a common liability with them.

The next question in the cause arises out of the Rutherford debt. Robert Rutherford was largely indebted to the estate of Morrow; and Cookus and Worthington, the administrators of the latter estate, became jointly administrators of the estate of Rutherford. In that character, Worthing-ton proceeded to collect a large sum out of the property of Rutherford, which it is alleged was properly to have been appropriated to the debt due to Morrow, and which the chancellor accordingly directed to be passed to the credit of his estate, and to be charged not only against Worthington, but against Cookus also, the co-administrator, who received no part of the funds.

It has been a subject of controversy in the argument, whether the funds received from Rutherford’s estate were ^derived from his realty or his persona^’. But in the view I take of

this matter, it is unimportant which. If it was personalty, then the money having been received by Worthington alone, Cookus was not responsible qua administrator of Rutherford; nor is he responsible as surety for Worthington as administrator of Rutherford, because the administration bond is void, upon the authority of Frazier &c. v. Frazier’s ex’ors &c., 2 Leigh 642. If it was realty, then the money was receded by Worthington as joint trustee with Cookus; and then, even if they had joined in the receipt of the money, he would not necessarily be liable, since the joining might have been necessary, or pro forma: and at any rate, if paid to his companion without his consent or direction, he would not be chargeable. Monell v. Monell, 5 Johns. Ch. Rep. 296. I am therefore of opinion that as a representative of Rutherford’s»estate, Cookus was in no wise responsible for the receipt of the money by his co-administrator.

It is contended, however, that as the funds thus received by Worthington of Rutherford’s estate were immediately applicable in his hands to the payment of the debt to Morrow, that application must be intended to have been made. This is an important and interesting question, since upon it depend the respective liabilities of different classes of sureties, where the same person is administrator both of the debtor and creditor estate, and has received - of the former sufficient assets to discharge the debt due to the latter.

In the somewhat analogous case of a person acting in the two characters of guardian and administrator, this court seems evidently to have contemplated the necessity of some act on the part of the administrator, manifesting his election to hold the funds (which he received as administrator)' in the character of guardian, in order to charge the sureties in his guardian’s bond. Myers v. Wade, 6 Rand. 444; Broaddus &c. v. Rosson *&c., 3 Leigh 12. See also Pratt et al. v. Northam et al., 5 Mason 108. A similar principle had long before been adopted in reference to a husband executbr, who is also legatee in right of his wife. Indeed it is the well recognized principle of the common law, that such executor must by some act or declaration manifest-his intention to take his wife’s legacy in the character of husband, or he will be construed to continue to hold it as executor. Toller 344; Wallace et ux. v. Taliaferro et ux., 2 Call 447. His first and general authority is as executor, and notwithstanding the union of the two characters of executor and legatee in right of his wife, and though not a single debt be due, his assent to the legacy’s vesting in him as legatee is as necessary to vest it in himself, as it would be to vest it in another. The consequence is that if the husband dies without such election, the legacy survives to the wife. Baker v. Hall, 12 Ves. 496; Wall v. Tomlinson, 16 Ves. 413. I cannot perceive any material distinction between these cases and the case at bar. Though Worthington as administrator of Morrow had a right to retain what he received as administrator of Rutherford, for the payment of the debt to Morrow, Toller 296, yet as this right depended upon the situation of Rutherford’s estate, upon the comparative dignity of the demands against it, and (if the funds were derived from the realty) upon the right of the creditor Morrow to charge the realty, and if he had right, then upon the proportion he was entitled to receive, it would be going far to say that the funds as soon as received should be passed to the credit of Morrow, with or without the consent of the administrator of Rutherford. It cannot be denied, I think, that he might have refused so to appropriate the funds. Suppose he had in fact refused: suppose he had in fact applied the funds to the payment of Rutherford’s simple contract debts: would it still have been said that the funds had come to the hands of Morrow’s administrator, *when in fact he has wasted the estate of Rutherford by failing to pay off a debt.of superiour dignity? Would not Rutherford’s estate still be liable for this debt and would not the sureties of Worthing-ton in the bond be chargeable (if the bond were valid) for his failure to make a due appropriation of the funds which came to his hands as administrator? I apprehend they would, most assuredly ; for he has received funds, and bás done no act by which they have been paid over to another.

If the fact of refusal to appropriate the funds of the debtor estate to that of the creditor excludes the idea of such actual appropriation, the facts in this case are well nigh decisive as to that matter; for Worth-ington received all those funds anteriour to the settlement of his account as administrator of Morrow’s estate, and upon that settlement gave no credit for the amount; and what is yet more decisive of his declining to pass over the funds from one estate to the other, he has not, in his settlement of his account as administrator of Rutherford, charged that estate with one cent passed over in payment of the debt to Morrow.

It is said, however, that he ought to have done it, and therefore the law will intend that he has done it. That he ought to have done it, is most true; and that for omitting to do it, his sureties (if the bond were good) would be responsible, is not less true. But why shall the law intend, against the obvious intentions of Worthington, that he has done that which he not only did not do, but which he obviously intentionally omitted to do; when such intendment can only serve to shift a burden from one set of sureties to another? Intendments of law are often fictions. Fictions are introduced to effect the ends of justice, and the law never will permit them to work injustice: and what injustice would be more gross than, upon a mere fiction, to transfer the responsibility of the acts of an administrator from one set of sureties to another? The last act of Worthington in relation to these funds (of which we know an3r *thing) is the receipt of this money. For this receipt, and the proper application of the money, his Rutherford sureties would have been responsible, and they could not discharge that responsibility except' 'by shewing that in point of fact he had properly applied it. It would indeed be a novelty, if the administrator is to be presumed to have done right, so as to exonerate his sureties, when there is demonstrative certainty that he has not done right, but has wasted and converted to his own use the estate for which he is responsible.

But it is said, Cookus is responsible for not having collected the debt, from Rutherford’s estate. He is responsible, it must be admitted, qua surety; but he is not responsible qua administrator of Morrow. For there has been no negligence. The funds of Rutherford’s estate came within the power of the administrator Worthing-ton, and he is indeed responsible for not passing them over to Morrowls credit, and paying Morrow’s debt with them; but Cookus is not; for he had no power, either by suit or otherwise, to compel Worthing-ton to pass the funds to Morrow’s credit.

In every view, therefore, I am of opinion that Cookus is only responsible as surety, pari passu with the other sureties, and that the decree which charges him without bringing the other sureties before the court is erroneous.

As to the Merritt debt, there can be no doubt, I think, that the administrator should have been credited with it as paid on the 27th of May 1823; and the exception to the item was properly overruled.

The decree of the court of appeals was as follows: “This court is of opinion that the appellant should not have been held or made liable, qua administrator, for the acts, dev-astavits or defaults of his co-administrator Worthington, as he does not appear to have contributed to his devastavit, or to have paid over moneys to him, or to have joined in receiving funds which he has permitted him to retain: that as obligor in the joint bond entered 'x'into for the faithful administration of the estate of John Morrow, he became indeed responsible as surety for the devastavit, default and negligence of his co-administrator, but was only so responsible in his character of surety, and was only chargeable pari passu with the other sureties in the bond. It was therefore premature and erroneous to decree against him in that character for the devastavit of Worthington, without having previously convened the other sureties before the court, that the burden might be equally borne by them all. And the court is further of opinion that the administration bond on the estate of Rutherford was void, on the authority of Frazier &c. v. Frazier’s ex’ors &c., 2 Leigh 642, and that neither Cookus nor the other sureties in that bond were bound by it: and moreover, as the funds received from the Rutherford estate by Worthington were received in the execution of the trusts of Rutherford’s will, Cookus was in no wise responsible as co-trustee or co-administrator for the receipt and embezzlement of the money by Worth-ington, inasmuch as there is no evidence establishing such co-operation in his acts as ought to charge him. But the court is of opinion that if it should ultimately ap-X^ear that the funds so received by Worth-ington from Rutherford’s estate ought to have been passed over by him to the credit of Morrow’s estate, then the sureties for his administration of Morrow’s estate, including the appellant Cookus, are responsible for his omission so to pass them over, and for his devastavit of those funds. And the court is further of opinion that the chancellor did not err in overruling the plaintiffs’ four.th exception ; the court being of opinion that the payment of the Merritt debt by Hageley on the 27th of May 1823, at the request of Cookus and on his promise of repayment, should be considered as a payment of that date, whatever might be the date of his repayment to Hageley. Therefore it is considered that the decree be reversed with costs, and the cause remanded &c. for new parties and farther proceedings. ”  