Campbell v. Gilbert, 6 J. J. Marsh. 592. Nor for his acts or defaults as agent for the heirs or distributees, and by their authority: Hebert v. Hebert, 22 La. Ann. 308; Shields v. Smith, 8 Bush, 601. Nor are they liable for the proceeds of bonds held by the testator in trust for others which the executor collects and fails to pay over to the beneficiaries: Quimby v. Walker, 14 Ohio St. 193. Where the administrator of a deceased sheriff was authorized by a private statute to collect certain arrearages of taxes on a warrant committed to the sheriff, the sureties on the administration bond were held liable for the moneys so collected: Morton v. Ashbee, 1 Jones L. 312. Where a public administrator is appointed executor of a will and gives bond, takes possession, and administers the estate in the latter capacity, undoubtedly his sureties as public administrator will not be liable for his doings. But where he takes possession and proceeds to administer without executing a bond as executor, or giving the notice required by law, and the probate court recognizes his acts as those of the public administrator, the sureties on his bond as such administrator will be liable for his defaults: State v. Purdy, 67 Mo. 89. Where administration was fraudulently taken out on the estate of a living person, and the estate was squandered, the sureties were held liable on the administration bond in an action by the alleged decedent, on the ground that this was a breach of duty as administrator; but Davis, P. J., dissented, holding the liability to be merely personal: Williams v. Kiernan, 25 Hun, 355.

8. Liability for Defaults Committed or Funds Received before Appointment or Execution of Bond.-No doubt the sureties of an executor or administrator are liable generally only for faults committed and funds received after the execution of the bond. Hence, the sureties of an executor upon a bond conditioned that he "shall well and duly perform his duties as executor" are not liable for defaults prior to the making of the bond: State v. Hood, 7 Blackf. 127. So undoubtedly the sureties will not be liable, as a general rule, for funds received by the principal before the execution of the bond, or, a fortiori, before grant of administration, unless they remain in his hands when the bond is executed. But where goods are received by an administrator before letters of administration are issued under an agreement to take out letters, the pre-sumption is that he holds them at the time of his appointment, in the absence of contrary proof, and his sureties are liable therefor: People v. Hascall, 22 N. Y. 188. So where an administrator receives funds in a fiduciary capacity, which he inventories as part of the estate: Goode v. Buford, 14 La. Ann. 102. So as to funds received by a special administrator before his appointment, while acting as agent for a prior administrator, and for which he gives a re ceipt to the prior administrator: Gottsberger v. Smith, 5 Duer, 566; Gottsber ger v. Taylor, 19 N. Y. 150.

Where a new bond is given by an executor, pursuant to an order of the surrogate, under the statute, upon the application of parties interested that a new bond be executed, or in default thereof, that the executor be removed, the sureties on such bond will be liable for a misappropriation and loss of assets before its execution, because if the bond had not been given, the execu tor would have been removed: Schofield v. Hustis, 9 Hun, 157; Scofield v. Churchill, 72 N. Y. 565. So where upon a settlement of an administrator's account a balance was found due from him to the estate, and the probate court required a new bond, which was executed three days afterwards, the sureties thereon were held liable for a previous conversion: Brown v. State, 23 Kan. 235. So where a new bond was given after a conversion by pledg ing the assets for the administrator's debt, and the administrator subsequently failed to recover the same, as he might have done, the new sureties were held

liable: State v. Berning, 74 Mo. 87; Wolff v. Schaeffer, Id. 154.

And where

a new bond is given upon the application of the sureties in a prior bond, and a default is discovered many years afterwards, it will not be presumed to have occurred before the new bond was given, and the sureties thereon will be prima facie liable: Phillips v. Brazeal, 14 Ala. 746. Generally, the sureties on an additional bond will be liable for the proceeds of property sold before, where the facts warrant the presumption that the money is still in the administrator's hands: May v. Kelly, 61 Ala. 489. In Morris v. Morris, 9 Heisk. 814, it is held that where, upon a petition of the sureties of an administrator to be released, a new bond is given, the sureties therein are primarily liable, to the extent of the penalty, first, for defaults occurring after the execution of the second bond, and second, for prior defaults; and that the sureties on the first bond are liable for the prior defaults only so far as they are not covered by the new bond. The giving of a new bond does not release the sureties on the prior bond, even though intended for that purpose, if not given for one of the causes specified in the statute: Wood v. Williams, 61 Mo. 63. In Enicks v. Powell, 2 Strobh. Eq. 196, it is held that where an additional bond is given, the sureties in the two bonds are parties to a common undertaking. Where a new bond is given upon a discharge of the sureties in a prior bond, and a devastavit occurs, it is held, in Alexander v. Mercer, 7 Ga. 549, that a bill will lie against both sets of sureties for a discovery of the amount and date of the devastavit, so as to charge the sureties according to their respective liabilities. Where a new bond is given, under the statute, upon an application for a sale of realty, the sureties therein are liable only for the proceeds of such sale: Worgang v. Clipp, 21 Ind. 119. And in Salyers v. Ross, 15 Id. 130, it is said that such bond is subsidiary to the administration bond, and that no action is maintainable thereon till the penalty of the administration bond is exhausted. In Powell v. Powell, 48 Cal. 234, it is held that where a bond given on an application for the sale of land contains the same condition as the original administration bond, the sureties on both bonds may be joined in an action for a default. Where an administrator resigns after an account showing a balance against him, and is afterwards appointed administrator de bonis non, giving bond as such, the sureties therein will be liable for such balance, upon the presumption that he received it as administrator de bonis non, although he and the sureties in the first bond are insolvent: Modawell v. Hudson, 57 Ala. 75.

9. Termination of Liability.-Of course, where the sureties in an administration bond are released by the giving of a new bond, pursuant to statute, they are not liable for subsequent defaults: State v. Stroop, 22 Ark. 328. Nor are the sureties liable for defaults occurring after the termination of the period of administration as limited by law: Flores v. Howth, 5 Tex. 329; Jones v. Perkins, 8 Id. 337. So the sureties on the bond of a public administrator are liable only for his defaults with respect to estates committed to him during his term of office, though he is reappointed: Buckley v. McGuire, 58 Ala. 226. But they continue liable for acts done after the expiration of his term in finishing the administration of estates previously committed to him: Estate of Aveline, 53 Cal. 259. Where an executor sells property for notes not maturing until after the expiration of his appointment, and fails to account for them, his sureties are liable: Verret v. Belanger, 6 La. Ann. 109. A surety who becomes administrator upon the death of his principal is liable as a surety on his former bond only for defaults occurring during the prior administration: People v. Allen, 86 Ill. 166. The death of a surety does Bot terminate his liability, and his estate is responsible for subsequent de.

faults in administration: Mundorff v. Wangler, 12 Jones & S. 495. Nor is his liability terminated by the revocation of the letters of administration: Neal v. Becknell, 85 N. C. 299. Where the will is annulled under which an executor or administrator cum testamento annexo is acting, his sureties remain liable for the property coming into his hands: Crow v. Crow, 14 B. Mon. 176. But they are not liable for property distributed by him, in good faith, in the payment of legacies: Jones v. Jones, Id. 373. In Bell v. People, 94 Ill. 230, it is held that where a decree is made setting aside a will under which an administrator cum testamento annexo is acting, but directing him to administer the estate as intestate property, and he continues to act, his sureties continue liable. Where an administrator is also guardian of the sole heir and distributee of the estate, and pays all the debts with a few trifling exceptions, closes his account but makes no report, charges himself in his private book with the balance on hand as due the heir, pays the ward's expenses, collects rents, etc., and a reasonable time has elapsed, his sureties as administrator are released and his suretics as guardian are liable: Beil v. People, 94 Ill. 230. So where an administrator becomes guardian of a distributee after a decree ascertaining his share, he is deemed to hold the same as guardian by way of retainer, and the sureties on the administration bond are not liable therefor: Taylor v. Deblois, 4 Mason, 131. So where an administrator becomes executor of the sole distributee, his sureties as administrator are not liable for property in his hands after the debts are paid: Weir v. People, 78 Ill. 192. But where an administrator who is also guardian of minor distributees receives assets from an ancillary administrator, but does not inventory or account for them or obtain an order of distribution, he is deemed to hold them as administrator and not as guardian, and the sureties on the administration bond are liable therefor: Pratt v. Northam, 5 Mason, 95. And it is held in Harrison v. Ward, 3 Dev. L. 417, and Clancy v. Carrington, Id. 529, that the sureties of an administrator who is also guardian of the next of kin, are not released by his returning an account and acknowledging the balance due his ward, unless the money to pay such balance is identified and retained by him as guardian. In Wilson v. Wilson, 17 Ohio St. 150, it is decided that to release his sureties as administrator, in such a case, he must credit himself with the fund as administrator and charge himself with it as guardian.

BREACH OF BOND OF EXECUTOR OR ADMINISTRATOR, WHAT CONSTITUTES. 1. Neglect to File an Inventory within the time limited by law or by the condition of the bond is no doubt a breach of an administration bond, and an action will lie before the time for rendering an account has expired: 1 Wms. on Ex'rs, 6th Am. ed., 606; Greenside v. Benson, 3 Atk. 252; Minor v. Mead, 3 Conn. 289; People v. Hunter, 89 Ill. 392; Gilbert v. Duncan, 65 Me. 469; McKim v. Harwood, 129 Mass. 75; Edmundson v. Roberts, 2 How. (Miss.) 622; Johannes v. Youngs, 45 Wis. 445. So a neglect or omission to include in the inventory property known to the administrator or executor: Bourne v. Stevenson, 58 Me. 499; State v. Scott, 12 Ind. 529. But neglect to file an inventory, or to include therein all the property of the estate, is no breach unless it appears that the executor had knowledge of property which ought to have been and was not inventoried: State v. Scott, supra; Judge of Probate v. Lane, 6 N. H. 55. Failure to file an inventory is no breach of the bond, however, where the estate has been declared insolvent by a decree of the orphans' court, in Alabama: Edwards v. Gibbs, 11 Ala. 292. And where ■ failure to file an inventory constitutes a breach, it is held, in Massachusetts,

that it will be cured by filing the inventory before suit where there are no creditors: McKim v. Harwood, 129 Mass. 75.

2. Neglect to Render Accounts, as required by statute or the condition of the bond, within the time limited, or when properly cited or decreed to account, is also a breach: 1 Wms. on Ex'rs, 6th Am. ed., 606; Canterbury v. Wills, 1 Salk. 152, 315; Prindle v. Holcomb, 45 Conn. 111; Clark v. Cress, 20 Iowa, 50; Williams v. Esty, 36 Me. 243; Coney v. Williams, 9 Mass. 114; Bennett v. Russell, 2 Allen, 537; McKim v. Harwood, 129 Mass. 75; Dickerson v. Robinson, 6 N. J. L. (1 Halst.) 195; Ordinary v. Barcalow, 36 Id. (7 Vroom), 15; Matthews v. Page, Brayt. 106; French v. Winsor, 24 Vt. 402; Probate Court v. Chapin, 31 Id. 373; Johannes v. Youngs, 45 Wis. 445. But though the time for rendering the account has expired without an account, it is held, in McKim v. Harwood, 129 Mass. 75, that the technical breach is cured by filing an account after suit commenced where there are no creditors. But in Clark v. Cress, 20 Iowa, 50, it is said that an account after suit commenced is no defense, and nominal damages are at least recoverable in an action by the widow and heir. A settlement with the heirs out of court is not a compliance with a condition to account when required in the probate court: Clarke v. Clay, 31 N. H. 393.

3. Converting, Wasting, or Misappropriating Assets is of course a breach of the bond: Canterbury v. Robertson, 3 Tyrw. 390; S. C., 1 Cromp. & M. 691; State v. Scott, 12 Ind. 529; Owen v. State, 25 Id. 371; Edmundson v. Roberts, 2 How. (Miss.) 822. So though the conversion takes place before inventory: Canterbury v. Robertson, supra. So where the property converted was received before the bond was executed if converted afterwards: Owen v. State, 25 Ind. 371. Where an administrator applies the proceeds of land upon which there are judgment liens to the payment of other debts, it is a breach for which the lien creditors may sue: State v. Brown, 80 Ind. 425. But where an administrator in good faith, and under the order of the court, pays off an incumbrance out of the proceeds of lands sold, no action will lie therefor on his bond, on the ground that the equity of redemption alone was sold, and that the incumbrancer must still look to the land: State v. Schleiffarth, 9 Mo. App. 431. Suffering a fraudulent and collusive judgment to be taken against the estate, upon which realty is seized in execution, is held to be no breach of a bond conditioned to administer according to law the goods, chattels, and credits, etc., of the estate: Gilbert v. Duncan, 65 Me. 469. So held, also, as to a confession of judgment upon which realty is sold to pay debts posterior to those which would have been paid if the property had been brought into due course of administration: Reed v. Commonwealth, 11 Serg. & R. 441. Permitting waste or trespass upon the realty of the decedent by third persons is no breach of a condition to account for thrice the amount of waste and trespass after a representation of insolvency, under Maine R. S., c. 64, sec. 19, unless the estate has been represented as insolvent: Gilbert v. Duncan, 65 Me. 469.

4. Non-payment of Debts, Legacies, and Distributive Shares.-Subject to the condition that the personal liability of the administrator or executor has been previously established by appropriate proceedings, as hereinafter mentioned, the non-payment of a debt, which is a proper claim against the estate where the administrator or executor has received sufficient assets which are appropriate for its payment, is no doubt a breach of the adminis tration bond: Warren v. Powers, 5 Conn. 373; Hobbs v. Middleton, 1 J. J. Marsh. 191, 192; Coney v. Williams, 9 Mass. 114, 117; Hazen v. Durling, 2 N. J. Eq. 133; Washington v. Hunt, 1 Dev. L. 475; Lining v. Giles' Ex'r, ʼn

Brev. 530. Non-payment of a claim barred by the statute of limitations, because not presented in time, is no breach: Gookin v. Sanborn, 3 N. H. 491. So where, in an action against an administrator for a claim barred by statute, he appeared and pleaded the statute but was afterward defaulted: Robinson v. Hodge, 117 Mass. 222. But where a claim barred by statute because not presented in time was afterwards presented and allowed by the adminis. trator, and ordered paid by the court, the non-payment of it was held a breach of the bond: Weber v. North, 51 Iowa, 375. Non-payment of a debt contracted by the administrator himself in settling the estate for services rendered, or the like, is not a breach of the administration bond, because it is the personal debt of the administrator: Baker v. Moore, 63 Me. 443; Taylor v. Mygatt, 26 Conn. 184; and in the latter case probate fees are said to stand on the same ground. But where an administrator brought replevin for goods claimed to belong to the estate and failed in the action, and the surety on the replevin bond was compelled to pay the judgment and afterwards took judgment on motion against the administrator, the sureties on the adininistration bond were held liable for the non-payment of the judgment, because it was the debt of the estate: State v. Dailey, 7 Mo. App. 549. Where the creditor of an intestate estate has taken the note of a third person in payment, and the maker of the note proves insolvent, the sureties on the administration bond are not liable for the debt: Rawson v. Piper, 34 Me. 98.

Non-payment of a legacy is also a breach of an executor's bond, if the amount due and the sufficiency of the estate, etc., have previously been ascertained by a judgment or decree against the executor, as hereinafter stated: Perkins ▼. Moore, 16 Ala. 9; American Board's Appeal, 27 Conn. 344; Ruby v. State, 55 Md. 484; Judge of Probate v. Emery, 6 N. H. 141; Gandolfo v. Walker, 15 Ohio St. 251. So whether the legacy grows out of realty or personalty, if the executor is chargeable with it: Moore v. Waller, 1 A. K. Marsh. 488. Neglect to pay legacies is a breach of a bond conditioned to deliver and pay over the residue of the effects and credits at the close of administration “unto such person or persons respectively as the same shall be due unto:" McLane v. Peoples, 4 Dev. & B. L. 9. A bond conditioned "well and truly to administer" covers the duty of paying a legatee for life the interest and dividends of the fund bequeathed, and a non-payment thereof is a breach: Sanford v. Gilman, 44 Conn. 461. In Fulcher v. Commonwealth, 3 J. J. Marsh. 502, the non-payment of a legacy by an administrator cum testamento annexo is held not to be a breach of the administrator's bond where the bond is not in the form required of such an administrator, but is an ordinary administrator's bond.

Non-payment of a distributive share of an estate to an heir or distributee is also a breach, for which an action lies on an administration bond after the liability and default of the administrator have been duly established: Ralston v. Wood, 15 Ill. 159; Tracey v. Hadden, 78 Id. 30; Dawes v. Sweet, 14 Mass. 105. But if by mistake the bond contains no condition covering the interests of distributees, a refusal to distribute is no breach: Arnold v. Babbit, 5 J. J. Marsh. 665. And in Barbour v. Robertson, I Litt. 93, it is held that a condition "to well and truly administer according to law" does not protect the interests of distributees, but that such condition relates to creditors only.

5. Neglect or Refusal to Deliver Assets to Successor, or to Pay into Court.Where an administrator or executor has resigned or been removed and fails to deliver or pay to his successor the assets in his hands or a balance due