the statute requires a bond to be given in the name of the Governor of the state as obligee but the bond is given in the name of the "Chairman of the County Court" it is a good common law bond and can be sued on only in the name of the obligee. It is a voluntary bond.50 So if the residuary legatee gives the ordinary bond of an executor 51 or an executor gives the bond suited to a residuary legatee-executor, they do not contain what the statute requires, but are not void, nor, what is more important, is the appointment void.52

§ 282. The liability of sureties inter se where there are successive bonds. Four different views are possible and have been at one time or another taken. (a) The successive bonds are cumulative and the parties are co-sureties and liable to contribute without reference to the date or priority in time of the bond.58 It is frequently said that the court, apart from statute, has no power to release a surety and accept a new bond even as to future defaults. If the penalty of the later bond is in a different amount the contribution is proportioned to the penalty.54 (b) Both sets of sureties are liable to persons injured but as between themselves the sureties on the first bond are liable for the defaults primarily, such as occurred prior to the execution of the new bond and the second set of sureties are likewise primarily liable for the later defaults.55 (c) The second set of sureties are primarily liable for all defaults whether accruing

50 Hibbits v. Canada (1837) 18 Tenn. 465.

51 Cleaves v. Dockray (1877) 67 Me. 118, see Woerner Law of Administration (1923, 3d Ed.) p. 849. 52 Fry v. Crockett (1885) 77 Me. 157.

53 Powell v. Powell (1874) 48 Cal. 234; Loring v. Bacon (1849) 3 Cush. (Mass.) 465; Bellinger v. Thompson (1894) 26 Ore. 320, 37 Pac. 714, 40 Pac. 229; Enicks v. Powell (1848) 2 Strobhart's Eq. (S. C.) 196; Keowne v. Love (1885) 65 Tex. 152; Rudolf V. Malone

(1899) 104 Wis. 470, 80 N. W. 743; Richter v. Estate of Lieby (1898) 101 Wis. 434, 77 N. W. 745; Central Banking Co. v. U. S. Fidelity Co. (1913) 73 W. Va. 197; when no statute, contra, Thompson v. Dekum (1898) 32 Ore. 506, 52 Pac. 517, 755.

54 Loring V. Bacon (1849) 3 Cush. (Mass.) 465. See Sec. 169 supra.

55 Corrigan v. Foster (1894) 51 Oh. St. 225, 37 N. E. 263; Phillips v. Brazeal (1848) 14 Ala. 746. See Sec. 174, supra.

before or after the bond was executed and so liable to indemnify or exonerate the first set of sureties.56 (d) It is sometimes assumed that the court has power to discharge the obligations of the first bond and relieve the sureties of all future obligations in which event the second set of sureties become wholly liable for all obligations.57 In many jurisdictions the statute on petition of the surety requires the representative to show cause why a new bond should not be required. If a new bond is ordered the prior surety is relieved of future liability.58 But the order to show cause implies that cause may be shown to defeat the demand.59

From the standpoint of the surety, assuming that in a given case his bond does not exclude it, he is bound as much for defaults accruing prior to the execution of the bond as for those occurring thereafter.60 The only question remaining being whether he is entitled either to contribution or to exoneration or indemnity. Where the first sureties ask for a release and a new bond is given it was held in Morris v. Morris 61 that the second set of sureties becomes primarily liable to the extent of their bond, but if this bond is insufficient to cover the default then the first sureties are liable for the remainder up to the amount of the penalty named in their bond. A sort of marshalling is resorted to. The second set first accounts for the defaults accruing after the taking of the second bond, and then for the earlier defaults to the extent of the penalty of their bond. Only in case of failure here may the first set be called upon, but it is recognized that for the later defaults no claim can be made

56 Pinkstaff v. People (1871) 59 Ill. 148; Lingle v. Cook (1879) 32 Gratt. (Va.) 262; Morris v. Morris (1872) 56 Tenn. 814.

By statute, Thompson v. Dekum (1898) 32 Ore. 506, 52 Pac. 517, 755.

57 See on this problem Woerner on American Law of Administration (1923, 3d Ed.) Sec. 255.

58 Nat. Surety Co. V. Morris (1900) 111 Ga. 307, 36 S. E. 690; 2 Woerner on American Law of Administration (1923), Sec. 255.

59 Estate of Thurber (1900) 162 N. Y. 244.

60 Elizalde v. Murphy (1912) 163 Cal. 681, 126 Pac. 978; Brown v. State (1880) 23 Kan. 164; State v. Berning (1878) 6 Mo. App. 105; Choate v. Arrington (1875) 116 Mass. 552; State V. Creusbauer (1878) 68 Mo. 254; Bellinger v. Thompson (1894) 26 Ore. 320, 37 Pac. 714, 40 Pac. 229; Lingle v. Cook (1879) 32 Gratt. (Va.) 262. 61 (1872) 56 Tenn. 514.

upon the first set of sureties while for the earlier defaults a claim can be made if the second bond is insufficient to cover them.

Though the court may have no power to discharge a bond directly when once given, yet it may do so always by revoking the appointment and making a new one which would discharge the surety as to future obligations. It would make no difference if the administrator cum testamento annexo were thus reappointed and becomes administrator de bonis non.62 When a special bond is given on petition to sell land, is has been held that the general sureties are liable primarily for a default in the application of the proceeds; 63 but the creditor may elect which set of sureties he will sue.64

§ 283. Mutual rights and obligations between co-administra tors or co-executors and their sureties where a joint or joint and several bond is given. The law is well established that co-representatives are not liable for the defaults of each other in which they did not participate, unless the one has negligently or knowingly permitted the other to waste the estate.65 When they qualify they must either give each a separate bond, each bond being in a penalty twice the value of the property which they are expected to have in their charge, or they must execute a joint bond. Naturally the latter would be less expensive and will suffice in the absence of a statute requiring a separate bond of each. The important question then arises in the event that they give a joint or joint and several bond, whether this former rule of non-liability of each for the defaults of the other not concurred in, is to prevail or not. It is commonly said that the co-representatives now become joint principals and each must exonerate the sureties for any default causing a loss to

(1848) 2

62 Enicks V. Powell Strobbart's Eq. (S. C.) 196; Banker's Surety Co. V. Wyman (1909) 141 Ia. 574, 120 N. W. 116. 63 Salyers v. Ross (1860) 15 Ind. 130. Contra, Powell V. Powell (1874) 48 Cal. 234.

64 Pinkstaff v. People (1871) 59 Ill. 148.

65 Wilmerding v. McKesson (1886) 103 N. Y. 329; English v. Newell (1886) 42 N. J. Eq. 76, 6 Atl. 505.

That

the sureties. In fact this is almost the universal rule.66 the mere form of the bond changes a well founded rule and creates a liability upon the innocent co-principal has been felt to be shocking to at least two courts.67

In Nanz v. Oakley 68 the co-representatives gave a joint and several bond. One of the representatives so appointed was R, the sole distributee of the estate. The active duties were undertaken altogether by the other administrator who on accounting was found to owe a large sum which he had converted. Judgment was obtained against him and execution was returned unsatisfied. Thereupon R, having died, R's administrator assigned R's claim to plaintiff who sued one of the sureties of the said defaulting administrator. The defense mainly relied upon was the proposition that R was a principal in the joint obligation and as such could not herself sue the surety for a default of her co-principal since she was herself a surety for him. But the court held that though the bond was joint it was equivalent to the separate bond of each; that it was conditioned solely upon each performing all the orders of the court which were directed to such one and not conditioned on performing the duties assigned to the other; that therefore the execution of a joint bond should not have the effect of changing the common-law rule respecting non-liability of one administrator for the non-concurred in defaults of the other. This seems to accord with the view of Chancellors Kent and Sanford in an earlier case cited in this opinion. The case from Indiana (along with many others taking the opposite view, Braxton v. State) 69 was cited but not the case overruling it. In the latter case State v. Wyant 70 it was also held that the joint bond must be treated as the separate bond of each inasmuch as the statute there required separate bonds. It is believed that this reasonable and just view will come to commend itself to other courts when and as the cases may arise for the future.

66 Dobyns v. McGovern (1852) 15 Mo. 662; Hoell v. Blanchard (1809) 4 Desaus Eq. 21 (S. C.); Keowne v. Love (1885) 65 Tex. 152; Hughlett v. Hughlett (1844) 5 Humph. 453 (Tenn.) and cases cited in Nanz v. Oakley, infra, note 67.

67 State v. Wyant (1879) 67 Ind.

25;

Nanz v. Oakley (1890) 120 N. Y. 84, 24 N. E. 306, 9 L. R. A. 223.

68 (1890) 120 N. Y. 84, 24 N. E. 306, 9 L. R. A. 223.

69 Braxton v. State (1865) 25 Ind. 82.

70 (1879) 67 Ind. 25.

§ 284. The proper procedural steps. The weight of authority seems to hold that a default must be established against the representative before suit can be brought against the sureties on the bond and that the sureties should not be joined in a citation to account.71 But in some jurisdictions suit may be brought on the bond against both representative and surety for failure to account or for failure to pay a legacy.73 While it is held that there is no default by the representative before he has been cited to file an inventory or to account 74 yet the contrary also has been held.75 There must be an order of distribution before a distributee can sue.76

72

There is also a difference of opinion whether a demand is necessary by a person interested in the estate prior to suit, some denying such demand to be necessary 77 and others affirming it.78 Yet a representative cannot safely pay claims without an order of the court because he may turn out to have acted to the injury of other creditors.79 He cannot sell on credit without taking security and he should not sell for less than the appraised value or such proportion thereof as the statute permits.80

While it is said that in order to fasten upon the representative a default it must be shown that he has violated some order of the court 81 yet it is the duty of the representative to proceed with due dispatch within the statutory period to take all neces

71 Hobbs v. Middleton (1829) 1 J. J. Marsh (Ky.) 176; Grady v. Hughes (1890) 80 Mich. 184, 44 N. W. 1050; Potter v. Titcomb (1831) 7 Me. 302; Hood v. Hood (1881) 85 N. Y. 561.

72 Davenport v. Richards (1844) 16 Conn. 309; People v. Hunter et al. (1878) 89 Ill. 392.

78 State v. Wilson (1873) 38 Md. 338; Conant v. Stratton (1871) 107 Mass. 474.

74 Tate v. Norton (1876) 94 U. S. 746, 24 L. Ed. 222; Gilbert v. Duncan (1876) 65 Me. 469; Judge v. Couch (1879) 59 N. H. 39; Probate Judge v. Eddy (1866) 8 R. I. 339.

75 State v. Wilson (1873) 38 Md.

338; Bratton v. Davidson (1878) 79 N. C. 423; Ellis v. Johnson (1892) 83 Wis. 394, 53 N. W. 691; Comm. v. Bryan (1822) 8 Serg. & R. (Pa.) 128.

76 Mackey v. Coxe (1855) 18 How. 100, 15 L. Ed. 299.

77 Conant v. Stratton (1871) 107 Mass. 474; Pence v. Makepeace (1881) 75 Ind. 480; Davenport v. Richards (1844) 16 Conn. 309.

78 McBroom v. Governor (1837) 6 Porter 32 (Ala.).

79 State v. Taylor (1903) 100 Mo. App. 481, 74 S. W. 1032.

80 State v. Taylor (1903) 100 Mo. App. 481, 74 S. W. 1032.

81 Tate v. Norton (1876) 94 U. S. 746, 24 L. Ed. 222.