
    William Haywood, as Administrator, etc., of Cynthia J. Miller, Deceased, Respondent, v. John J. Townsend and Enoch L. Townsend, Appellants.
    
      Failure to file a bond is no defense to the sureties of a trustee in an action thereon — what is a sufficient delivery.
    
    In an action to recover upon a bond, it appeared that Cynthia Lane, in 1863, made her will, and bequeathed to Cynthia J, Haywood (who.subseqiiently, .by marriage, became Cynthia J. Miller, and whose administrator was the plaintiff) the sum of §500, and to Alice Haywood the sum of §300, which was to be paid to them by her' executor at majority, but until that time was to be kept at" interest. The will further directed the executor to give security for the discharge of his trust. Cynthia Lane dying in 1864, letters testamentary were issued to Robert M. Townsend, and on March 15, 1865, Robert M. Townsend, as principal, and the defendants, John J. Townsend and Enoch L. Townsend, as sureties, executed a bond, conditioned for the faithful performance by Robert M. Townsend of the duties of his trust, The bond¡ however, was not filed in the office of the surrogate, but remained in the possession of Robert M. Townsend for two or three years, when it was taken from him by the defendant John J. Townsend and burned. On the 16th day of March, 1865, Robert M. Townsend delivered a copy of it to the plaintiff, attached to which copy was an affidavit, stating that it was a copy of the original filed in the office of the surrogate of Otsego county, and he thereupon received the sum of §800, moneys of the trust.
    Robert M. Townsend made default in paying over the legacy, and proceedings were taken, in which it was adjudged that he was indebted to the plaintiff, who had been appointed, in 1878, administrator of Cynthia J. Miller, in the sum of §2,324.80 by reason of her legacy; the decree remained unsatisfied to the amount of §1,755.09.
    
      Held, in this action against the sureties, that the administrator was entitled to recover;
    That the same strict rules relative to delivery, which are applicable to deeds, do not apply to bonds and undertakings;
    That, so far as the sureties were concerned, no delivery of the bond, beyond its delivery by the sureties to Robert M. Townsend, was necessary;
    That, the only thing left to be done, after the delivery of the bond to Robert Jf. Townsend, was, that the bond should have been filed in the surrogate’s office, and that as such a filing was solely for the benefit of the legatees, and was not for the benefit of the principal or of his sureties, the fact that this was not done was not a defense to the sureties;
    That, by signing the bond and giving it to the principal, the sureties placed it in his power to secure the money, and that, after so doing, the sureties could not ■repudiate the bond to the detriment of the parties for whose security it was given.
    
      Appeal by the defendants, John J. Townsend and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 5th day of July, 1895, upon the decision of the court rendered after a trial at the Otsego Circuit before the court without a jury.
    This action was brought against the defendants, as sureties upon a bond of Robert M. Townsend, which was given for his faithful performance of the duties of testamentary trustee of a legacy of $500, which he was to hold and invest for the benefit of one Cynthia J. Haywood, who, by marriage to Frank Miller, became Cynthia J. Miller, and thereafter died. She was an infant daughter of the plaintiff, who was appointed administrator of her estate.
    
      W. J. Palmer, for the appellants.
    
      F. L. Michael, for the respondent.
   Herrick, J.:

In the year 1863 one Cynthia Lane made her last will and testament, whereby, amongst other things, she gave and bequeathed to Cynthia J. Haywood the sum of $500, and to Alice Haywood the sum of $300, to be paid to them by her executor on their arriving at full age, but until that time to be kept at interest for their benefit, and further directed that said executor should “ execute good and sufficient surety for the benefit of said children before he shall enter upon, the discharge of his trust, conditioned for the safe investment of said money, and the payment thereof, to said children, with interest, on their arriving at full age.”

Robert M. Townsend was designated by her as the executor of said last will and .testament. Said Cynthia Lane died on or about the 25th day of June, 1864, and letters testamentary• were issued to Robert. M. Townsend on the 12th day of December, 1864.

On the 15th day of March, 1865, Robert M. Townsend,, princi-' pal, and the defendants, John J. Townsend and Enoch L. Townsend, as sureties, executed a bond under their hands and seals, conditioned that the said Robert M. Townsend should well and truly discharge the duties of his trust, and keep the said legacies invested for and pay the same to Cynthia J. and Alice Haywood, their attorneys, administrators, executors or assigns, ■ with interest, on their becoming of age, according to the requirements of the said'Iast will and testament.

This bond appears to have remained with Eobert M. Townsend, or, if it was ever filed in the surrogate’s, office, was. subsequently-taken therefrom. For some'two or three years afterwards it was in the possession of Eobert M. Townsend, and was. taken from him by the defendant John J: Townsend and burned.

After the execution of the bond, and on the 16th day of March,. 1865, the said Eobert M. Townsend delivered a copy of it to the plaintiff, attached to which was an affidavit stating that the same was a copy of the original bond filed in the office of the surrogate of Otsego county, and received from the plaintiff (the father of Cynthia J. and Alice Haywood) the sum of $800 Upon said trust,

The said Eobert M. Townsend has not paid over, the full amount of said legacies as required under the will, and as provided by his bond. The legatee, Cynthia J. Miller, née Haywood, died intestate in the year 1878, and the plaintiff was appointed administrator of her estate. In 1894 an accounting by the said Eobert M. Townsend as trustee was had upon the petition of the plaintiff as administrator of the estate of Cynthia J. Miller before the' surrogate of Otsego county, and a decree was made by the surrogate and entered on the 3d day of April, 1894, whereby it was adjudged that the said trustee, Eobert M. Townsend, was indebted to the plaintiff as administrator on account of the said legacy and interest belonging to the estate of Cynthia J. Miller, in the sum of $2,324.80; an execution therefor has been issued and returned unsatisfied to the amount of $1,755.09.

Upon the trial various questions were raised, one as to the reception of the copy of the bond in evidence; the fact that it was a copy was testified to by Eobert M. Townsend ; at one point in his testimony he spoke of it as a copy of a copy, but taking his whole testimony together, I think it is fairly to be assumed that the paper received in evidence was not a copy of a copy, but a copy of the original bond, and it was not received in evidence until it was shown by the defendant John J. Townsend that he himself had destroyed the original bond by burning it.

The defendant Enoch L: Townsend, for a defense, asserted that á,t the time he executed the bond in -question he was under twenty-one years of age. The bond was executed March 15,1865. Enoch ■cannot tell what year he was born in. Upon his cross-examination on the 18th of February, 1895, he testified : “ I was fifty years old last March ; I didn’t say what year I was born in ; it would be 1845 the 4th day of March ; I became twenty-one years of age the 4th ■day of March, 1865 ; it would be 1844 I was born in ; well I was there, but I can’t swear just the year, it might have been in 1843.”

His brother, John J. Townsend, testified that Enoch became of age March 4, 1865. Upon this testimony the trial judge was warranted in finding that the defendant Enoch was over twenty-one years of age at the time of the execution of the bond.

The most serious objection made is, that the bond was never delivei'ed. We are not cited to any authority as to what is necessary to a delivery in a case such as this. Delivery is always a question of intention which must be that the instrument shall be operative. (2 Am. & Eng. Ency. of Law, 458.)

The same strict rules do not apply to bonds and undertakings ns to deeds.

The defendants, it appears from the testimony, knew wliat the bond was for; that without it the trustee, ¡Robert M. Townsend could not acquire possession of the money that was left by the testatrix for- the benefit of the legatees; they signed and executed the bond for the purpose of enabling him to get that money; when they delivered it to him and left it with him, after having executed it, it was, so far as any act of theirs necessary to be done to fix their liability upon the bond, complete.

Their obligation was something more than that of an indorser upon a note of a guarantor of the payment of money; they became responsible for the fidelity of the trustee, his integrity. (Douglass v. Ferris, 63 Hun, 413.)

Before he could commence the duties of his trust his faithfulness must be guaranteed ; when they placed in his hands the bond signed by them their act was finished; they had guaranteed his fidelity and became responsible for any breach ; so far as they were concerned the delivery was coinplete; they had delivered the instrument to him with the intention that their guaranty should be operative, that it should enable him to enter upon the duties of his trust. At the time he delivered a sworn copy of it as a voucher of his authority and right to receive the trust fund the bond executed by the defendants was in existence, and its subsequent destruction after the trustee, upon the faith of its -execution • and existence, had secured the legacies, cannot alter the liability of the defendants. If at that time the plaintiff,, instead of John J. Townsend, had secured possession of the bond and kept it until this time instead of burning it, can there be any question but that he could recover upon it ? Does the fact that after it had partially fulfilled its office, but while its most important function remained unperformed, it was taken and destroyed by one of its signers, change the situation except as to the matter of .proof as to whether such an instrument ever existed ? It seems to me not.

It is claimed by both parties that the bond should have been filed in the surrogate’s office; I assume that to be the law of the case; that was then the only additional delivery that the bond was capable of; it could not be given to the infant legatees or to their guardians, or to any other persons for them; it was to be left' with the surrogate. It was not a thing necessary to be done by the sureties.

The requirement that it should be filed with the' surrogate was for the benefit of the legatees, not for the benefit of the principal upon the bond or his sureties;' and the fact that it was not filed, that their principal did not do his duty in that respect, cannot be asserted by them as a defense to the bond. Their signing the bond was not conditional upon its being filed; as above stated, the requirement that it should be filed was not for their benefit.

It has been held that the requirement that a bond should be approved by tire surrogate is not one for the benefit of the sureties, but of the creditors and legatees, and that the sureties cannot raise the objection that it has not been so approved; that such an objection is iir the nature of an objection to their own act, or rather omission to act. (Mundorff v. Wangler, 44 N. Y. Super. Ct. 495-505.)

Having, by signing the bond and giving it to the principal, placed it in the power of the principal to secure the money, and he having done so,, it has, so far as the principal and sureties are concerned, served its purpose, and the defendants should not be permitted to repudiate the bond to the detriment of the parties it was apparently given to secure. (Russell v. Freer, 56 N. Y. 67.)

The defendants were bound by the judgment and decree of the surrogate as to the amount due from Robert H. Townsend, the trustee, to the plaintiff.

When sureties go upon the bond of a testamentary trustee, they make themselves privy to all proceedings against the principal, and when he, without fraud or collusion, is concluded, they are concluded also. (Gerould v. Wilson, 81 N. Y. 573-583; Douglass v. Ferris, 138 id. 192-201.)

The judgment appealed from should be affirmed, with costs.

AH concurred.

Judgment affirmed, with costs.  