Grant v. McKinney
Grant v. McKinney
Opinion of the Court
John Reily and Robert Hanna, in the lifetime of Hanna, were partners in trade. Hanna dying, Reily was appointed the administrator of the estate. He qualified and gave bond, with George W. Grant, the plaintiff in error, and J. A. Stranahan as his sureties. Reily was subsequently removed from the administration, and McKinney appointed de bonis non. McKinney brought this suit against Reily and his securities on the official bond. At the March term, 1871, judgment was taken against Reily and Stranahan by default. Grant made defense to the action, but there was a verdict and judgment against him for three hundred and fifty-nine dollars and seventy-eight cents, from which judgment he brings the cause to this court on error.
Two causes for reversal are insisted on. 1st. If Reily did convert the assets of Hanna’s estate to his own use, he did it not as administrator, but as surviving partner. 2d. That the judgment of the probate court of Walker county, removing Reily, was a nullity, and consequently the defendant in error could not have been legally appointed administrator de bonis non, and therefore could not maintain this suit.
These errors are not well taken. Reily, as the administrator of Hanna’s estate, and the securities upon his official bond, are liaCble for whatever assets came into his hands, and though he might have applied Hanna’s interest in the partnership property to the payment of partnership debts without becoming liable to the individual creditors of Hanna,.there is no pretense that a necessity for such application existed.
Under the circumstances insisted upon by appellant’s counsel, the judgment of the probate court would have been only voidable, and therefore, standing as it does, unimpeached and unap-' pealed from, we cannot review it here.
The judgment of the District Court is therefore affirmed.
Affirmed.
Reference
- Full Case Name
- G. W. Grant v. A. T. McKinney, Adm'r, &c.
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. In a suit on an administrator’s bond, brought by the administrator de bonis non against the original administrator and his sureties, it appeared that the original administrator was the surviving partner of the intestate, and that the assets of the estate consisted of the intestate’s interest in the goods of the firm left in the hands of the surviving partner, who was appointed the original administrator, and who, as such, inventoried the assets, hut failed to account for them. His sureties, being defendants in this suit, pleaded that the assets did not come to the hands of their principal as administrator, but as surviving partner, and, if converted at all, were converted by him as surviving partner, and not as administrator ; and further alleged that the partnership had never been settled up. But it was neither alleged nor proved that the assets had been applied to payment of partnership debts. Held, that on this state of case the defendants were liable to the administrator de bonis non for the value of the assets and interest. 2. An order of a probate court, removing an administrator, recited that he had grossly neglected his duties, had failed to report sales, or to make any exhibit of the estate, though more than a year had elapsed since his appointment, and that, being a transient person, and his residence unknown, no process could be served on him, and that proof had been made that he eluded service of process. This order was made on the same day as an application for his removal, and it does not appear that any citation was issued for him; but the order of removal had never been reversed or appealed from. The sureties of the administrator thus removed being sued on their bond by the administrator de bonis non, insisted that the order of removal was void, and, consequently, the plaintiff was not legally administrator, nor entitled to maintain this suit. But held, that at the worst the ojder was not void, but only voidable ; and being unreversed, its validity could not be impeached in this collateral way.