Matter of Fernbacher, deceased.

Schuler (2 Paige, 122, 132), the chancellor said: "The modern practice in such cases" (that is, in cases of bequest for life with limitation over of specific articles), "is to require an inventory of the articles, and security is not required unless there is danger that the articles may be wasted or otherwise lost to the remaindermen."

It would seem from later decisions of the courts of this state, that, under ordinary circumstances, executors should not turn over property to one who has simply a life estate therein, when such property is given in remainder to another, without obtaining from the first taker security for the protection of the remainderman (Tyson agt. Blake, 22 N. Y., 558; Montfort agt. Montfort, 24 Hun, 120; Livingston agt. Murray, 68 N. Y., 485).

Some of the clauses of this will, however, indicate that it was the testator's design to entrust to the life beneficiary the full possession and control of this estate. Where there is an expression in a will of such an intention, its executors are warranted unless there are special circumstances making such a course hazardous in surrendering the principal of the estate to the care of the life-tenant without security (Fiske agt. Cobb, 6 Gray, 144; Weeks agt. Weeks, 5 N. H., 326; Tagard agt. Piper, 118 Mass., 315; Flanagan agt. Flanagan, supra; Smith agt. Van Ostrand, supra).

The ground upon which the severity of the old practice has been somewhat abated, is doubtless this: that for the court to decree security in all cases, would often defeat the purposes of the testator. But whenever it has appeared that property bequeathed for life, with remainder over, has been in danger of being wasted, secreted or removed, the courts have held that the interests in remainder were entitled to be protected by compelling the life-tenant to give security (2 Perry on Trusts [3d ed.], sec. 541).

The same regard to a testator's intentions which led the chancery court to abandon the practice of requiring security, as of course, upon the mere application of a remainderman whose interests were in no practical danger, demand the exaction of

Ridley et al. agt. Brady

security where the testator's intentions are otherwise likely to: be frustrated by the conduct of the tenant for life.

Now, in this case, there is the exceptional feature of the pur pose on the part of the life beneficiary (a purpose well known to the other executors, and practically countenanced by them). of wasting the fund and of destroying the interests of the remaindermen therein, by converting and appropriating it to her individual use and benefit.

Under these circumstances it seems to me that the executorswere grossly remiss in failing to obtain security for the secure transmission to the remaindermen of the principal of this estate.

This failure I regard as evidence of misconduct and improvi dent management by the executors, and of unfitness for the due administration of their trusts.

It is the general practice to defer the determination of an application of this character, pending accounting proceedings, until such proceedings have terminated, but the undisputed facts and the disclosures of the papers submitted herein, satisfy me that no injustice will be done to these executors by directing their immediate removal.

Let a decree be entered accordingly.

CITY COURT OF NEW YORK.

EDWARD A. RIDLEY et al agt. THOMAS BRADY.

Bond-Liability of sureties upon a bond conditioned that an employes shall account to his employer for goods and moneys entrusted to his care-Distinction between "an official bond” and a bond given in the usual course of business transactions: -The application of the Law of Bailment to the latter-State agt. Nevin (Abb. Law J., vol. 32, No. 13, p. 245), and cases there cited distinguished.

There is a well-defined distinction between the liability of a surety upon a bond for the faithful performance of a public official's duties, and that of a surety upon a bond for the faithful performance of the duties of onenot occupying such a position-one who is to perform duties in the ordi

Ridley et al. agt. Brady.

nary sphere of an employee in the transaction of business between private individuals in a business community.

Sureties upon an official bond are bailees, but they are special bailees, subject to special obligations, and the ordinary laws of bailment cannot be invoked to determine the degree of their responsibility.

The ordinary laws of bailment can be invoked to determine the degree of the responsibility of sureties upon a bond for the faithful performance of the duties of others, not public officials.

In an action upon an employee's bond which, in terms, guarantees that he shall, at all times, "account" for all merchandise intrusted to him, and, if he "fails to account for any such goods," the surety will pay for their value:

Held, that such employee was a bailee for hire, and the law required of him ordinary diligence, and made him responsible for ordinary neglect; he was, in no sense, an insurer of the articles or moneys in his custody, and should not be held responsible for the same, if stolen from him, without any negligence or fault or want of care on his part:

Held, further, that a surety on the bond of such employee has a right to interpose a defense, under a denial of the allegations of the complaint, that such employee has accounted for the goods, admitted to have been stolen, within a legal construction of the terms of such bond.

Trial term, before the court and a jury, December, 1885.

MOTION for a new trial upon the judge's minutes.

E. P. Wilder, for plaintiff.

Van Loon & Capron, for defendant

HYATT, J.-This is an action upon an employee's bond, which in terms guarantees that he shall at all times "account" for all merchandise intrusted to him, and that if he "fails to account. for any such goods" the surety will pay for their value.

The proof is that a package of silk was intrusted to the employee for delivery and was never delivered nor returned.

The defense is, under denials of the allegations of the complaint, that the goods were stolen without any act of neglect on the part of the plaintiff's employee.

Other defenses, to wit:

First. That the bond offered in evidence bears date Septem-

Ridley et al. agt. Brady.

ber 10, 1883, this being written in ink, and that the part of the bond containing the condition thereof bears date September 11, 1882, the figures being printed, was cured by amendment upon the trial.

Second. That the plaintiffs cannot sue without joining as plaintiffs the executors of Edward Ridley (formerly a member of the firm). This is not pleaded either by demurrer or answer; it is therefore waived (Code of Civ. Pro., sec. 499).

If this does not avail, it is sufficient that the evidence is that the plaintiffs, as surviving partners, have succeeded to all the firm property and are carrying on the firm business, having complied with the statutes as to the continued use of the firm name (Matthews agt. Stietz, 5 Civ. Pro. R., 235).

So far, in my judgment, the plaintiffs' position is unassailable, The question under consideration is, however, the right of the defendant, as surety for the plaintiffs' employee, to interpose the defense, under a denial of the allegations of the complaint, that such employee has accounted for the goods, admitted to have been stolen, within a legal construction of the terms of the defendant's bond.

The plaintiffs insist that this defense is not within the words of the condition of the bond, which are absolute that the employee shall account to his employers and that in default thereof the surety will be responsible.

In support of this position the plaintiffs cite many cases, holding that sureties upon "official bonds" are, under all circumstances, liable for the default of those for whom they have engaged to be responsible, in case of any default or their failure to faithfully perform their acknowledged duties.

A careful examination of all the authorities in support of this position, discloses that there is a well-defined distinction between the liability of a surety upon a bond for the faithful performance of a public official's duties, and that of a surety upon a bond for the faithful performance of the duties of one not occupying such a position-one who is to perform duties in the ordinary sphere of an employee, in the transaction of business

Ridley et al. agt. Brady.

between private individuals in a business community. The authorities hold that the sureties upon an official bond are bailees, but that "they are special bailees, subject to special obligations, and that the ordinary laws of bailment cannot be invoked to determine the degree of their responsibility" (United States agt. Thomas, 15 Wall., 341).

In the case of State agt. Nevin (Alb. Law J., vol. 32, No. 13, p. 245), the appellant insisted that the contract of himself and his sureties, upon his official bond, to faithfully perform his duties, was simply that which the common law imposed upon a bailee for hire, and that he should not be held responsible for the money that was stolen from him, without any negligence or fault or want of care on his part.

The court held, that the "general rule is to the effect that public officers who are intrusted with public funds and required to give bonds for the faithful discharge of their official duties are not mere bailees of the money, to be exonerated by the exercise of ordinary care and diligence, that their liability is fixed by their bond, and that the fact that money is stolen from them without any fault or negligence upon their part, does not release them from liability on their official bonds."

In the case of The United States agt. Prescott (3 How., 588), the court said "that the obligation to keep safely the public money is absolute without any condition expressed or implied; and nothing but the payment of it, when required, can discharge the bond."

The court placed its decision solely and exclusively on the ground of public policy. At page 588 (United States agt. Prescott, supra), the court say: "Public policy requires that every depositary shall be held to a strict accountability."

In all the cases determining the liability of a principal and his sureties upon an official bond, the doctrine is laid down that the ordinary laws of bailment cannot be invoked to determine the degree of their responsibility, and that the defense. upon an unconditioned bond for the performance of official VOL III.

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