Edwards v. White , 12 Conn. 28 ( 1837 )

Waite, J.

This action is brought upon the penal part of a bond executed by Esther Dodd, John Russ, Joseph Pratt and Nathaniel Patten, to the judge of the court of probate for the district of Hartford ; and is against the defendants, as administrators with the will annexed, of the estate of Patten. The defendants, having prayed oyer of the bond, and recited it, with the condition annexed, have pleaded performance by the obligors. To this plea the plaintiff has replied, setting out various breaches, to which the defendants have pleaded several rejoinders ; and the pleadings have been closed, by a general demurrer to those rejoinders. From the pleadings it appears, that the bond was executed by Mrs. Dodd and Russ, as the administrators of the estate of John Dodd, jun., deceased, and by Pratt and Patten, as their sureties; and was given to secure the faithful performance of the duty of the administrators.

The first enquiry is, whether the rejoinders of the defendants, or any of them, are sufficient to bar the plaintiff’s suit?

The defendants have, in the first place, pleaded the statute of limitations, and averred, that no cause of action has accrued to .the plaintiff on said bond within seventeen years next before the bringing of the action. Prior to the revision of the statutes iu 1821, there was no statute limiting suits on probate bonds. The words of the old statute were, “ that no suit, process or action shall be brought on any bond, bill or note under hand, given for the payment of any sum or sums of money, not having any other condition, contract or promise therein, but within seventeen years next after an action on the same shall accrue.” Stat. 460. (ed. 1808.) tit. 101. c. 1. 5. 3. At the time of the revision, the statute was altered so as to extend the limitation of seventeen years to actions brought on any “ bond or writing obligatory,” but with this proviso, that in “ all cases” “ wherein, by the laws of this state,” previously “ in force, no time is limited for the bringing said actions,” the limitation “ shall commence and be computed from the first day of June, A. D. 1821.” Stat. 310. 311. tit. 59. s. 2. 8.

The bond in the present case has a condition annexed, which is not “ for the payment of any sum or sums of money and is, therefore, not within the terms of the old statute. The suit upon it was commenced in 1835, and within seventeen years from the first of June, 1S21 ; and consequently, is within the proviso of the revised statute. Neither of these statutes, therefore, can operate to bar the present suit.

It is stated in the replication, that all the goods, chattels and estate of John Dodd, jun., of the value of fifty thousand dollars, came into the hands and possession of John Russ, one of the administrators ; and that neither he and the said Esther, nor either of them, ever made anjT inventory of the same, or rendered any account whatever to the court of probate of their proceedings in settling the estate. To these breaches the defendants have, in their second rejoinder, pleaded, thatnog'oocfo, chattels or credits of the deceased ever came to the knowledge or possession of the administrators. But they have not averred, that John Dodd, jun. did not leave real estate, which came to the knowledge of the administrators, and of which an inventory might have been made. The statute makes it the duty of the administrators to make “ a true and perfect inventory and appraisement of all the estate of the person deceased, both real and personal.” Stat. 202. tit. 32. c. 1. s. 12. And the condition of thebond, which is in the form prescribed by the statute, requires the administrators to make an inventory of all the goods, chattels, credits and estate of the deceased. It was, therefore, as much the duty of the administrators to make an inventory of the real as of the personal estate. This is made necessary, that all who have an interest in the settlement of the estate may know what property belongs to the same. The averment, that there were no goods, chattels or credits of the deceased, furnishes no sufficient excuse for not making an inventory ; for there might have been real estate, of which an inventory ought to have been made. Had the defendants simply averred, that the deceased left no real estate, it clearly would not have furnished an excuse for omitting to make an inventory. To excuse the administrators in not complying with the requirements of the law and the condition of their bond, it ought, at least, to have been shown, that there was no estate, of which any inventory could have been taken.

It is, however, farther claimed, that if the facts set forth in the rejoinder do not furnish a sufficient excuse, yet they are a sufficient answer to the plaintiff’s replication, inasmuch as it is not there averred, that there was any real estate. It is alleged, that all the estate of the deceased, of the value of fifty thousand dollars, came into the hands and possession of one of the administrators. In our opinion, the breach is sufficiently assigned. The term estate comprehends real, as well as personal, property. It is not necessary to give a particular specification of the kinds of property, in assigning the breach. It may not be in the power of the judge of probate and those for whom he sues, to do it. Enough has been stated, by the plaintiff, to throw upon the defendants the necessity of justifying the omission of the administrators. This has not been done, in the present case ; and consequently, the second rejoinder must be adjudged insufficient.

This view of the case renders it unnecessary for us to determine whether the second rejoinder is not a departure from the plea ; and if it be, whether that mode of pleading is not author-ised by our statute, passed in May, 1822. St at. 61. (ed. 1835.) Were it necessary to decide the latter question, it might be incumbent upon us to enquire, whether the true construction has been given to that statute, in the case of Warren v. Powers & al. 5 Conn. Rep. 374. That decision was made by a divided court; and there are strong reasons for believing, that the design of the legislature in passing that statute, was, to sanction the mode of pleading adopted by the defendants in their second rejoinder. But a further consideration of the question is waived, as being unnecessary in the present case.

The two rejoinders which have been noticed, are the only ones that profess to answer all the breaches assigned in the replication. All the subsequent rejoinders do not, in any manner, answer, or profess to answer, the breaches for not making an inventory and not rendering an administration account; but merely profess to answer some or all of the other breaches assigned. Are those rejoinders sufficient 1

By the English law, if a plea purports to answer only a part of the declaration, and is in law a sufficient answer to that part only, the other part being left unanswered, the plea is bad, and, of course, considered as no plea. The plaintiff, however, should not, in such case, demur ; but should sign judgment as by nil dicit, that is, for want of a plea. And if he accepts it as a plea, by demurring to it, he discontinues his whole action. Com. Dig. tit. Pleader. E. 1. 1 Chitt. Plead. 509. 1 Wms. Saund. 28. n. 3. ^(a) But if there is a plea to the whole declaration, there will be no discontinuance ; and the defendant may, in such case, put in a second plea applicable to a portion of the charge only, where the matter is, in its nature, severable. Clarkson v. Lawson, 6 Bing. 587. (19 *Serg. &. Lowb.) 169.

These rules of pleading have never been adopted in Connecticut. Where the defendant has pleaded to the declaration, or rejoined to the replication, it has never been the practice for the plaintiff to sign judgment by nil dicit. If the plea or rejoinder is an insufficient answer to the plaintiff’s whole cause of action, he may demur. And it makes no difference whether the plea or rejoinder professes to answer the whole, or only a part of the plaintiff’s cause of action; or whether it is pleaded separately, or in connexion with the other pleas. It is necessary that the whole matter of defence pleaded should cover the whole complaint. But the defendant may plead several different matters of defence to as many different parts of the alleged cause of action ; and if all taken together form a sufficient answer to the whole matter of complaint, the defence will be complete.

In the present case, no one of the rejoinders, nor all of them taken together, sufficiently answer all the breaches assigned in the plaintiff’s replication : consequently, they cannot operate as a bar of the plaintiff’s cause of action.

The next enquiry is, what damages can the plaintiff recover ? The statute provides, that “ in actions on penal bonds containing conditions that have been forfeited and broken, the court or jury, when tried by the jury, shall find and assess such damages as are justly and equitably due, and judgment shall not be rendered for the whole penalty, unless it appear to be due.” St at. 50. tit. 2. s. 60. The plaintiff is a mere trustee for the benefit of those who may be interested in the estate. He can, therefore, recover nothing for his own benefit. To entitle him to recover for the benefit of others, it is incumbent upon him to show what persons have been injured, by the misconduct of the administrators. There is no claim that any creditor has any debt unsatisfied.

It is stated in the replication, that John Dodd, jun. died without issue, leaving Esther Dodd his widow, and Sally Rass, the wife of John Russ, his only sister and sole heir at law. The widow and sister were, therefore, entitled to the whole estate remaining, after the payment of debts. The widow and the husband of the sister were appointed administrators. It is averred, that John Russ, the husband of the heir, upon the execution of the bond, took into his possession all the assets belonging to the estate. That portion of them, which belonged to his wife, became his, upon taking possession. His wife has, therefore, sustained no injury, for which an action will lie.

But it is claimed, that the suit is brought for the benefit of the legal representatives of the widow. She died long subsequent to the time limited in the condition of the bond for the final settlement of the estate. She and Russ were the principals in the bond, and Patten was merely their surety. It was as much her duty to cause the estate to be legally settled, as it was that of her co-administrator. Suppose the administrators were both living, and the plaintiff recovers in this suit; the defendants might immediately bring their action against the administrators, and recover from them all the damages they sustain, by reason of their misconduct; and having recovered judgment against them, might collect the amount from either. To allow a recovery against the surety,, on account of the mis- . conduct of the principal, for the benefit of that principal, would be manifestly unjust.

The death of the widow before the commencement of this suit, may vary the defendants’ mode of redress, but does not change the principle. It would be as unjust to allow a recovery for the benefit of her representatives, as it would be to allow it for her benefit, were she still living.

It has been further claimed, that if it appears, that there has been merely a technical breach of the condition of the bond, and no person interested in the estate has sustained any injury thereby, no recovery can be had. But we are satisfied, the law is otherwise. It was so holden, by the whole court, in the case of Warren v. Powers ; and the contrary doctrine would be a departure from principle. At common law, if the condition of the bond was broken, the obligor forfeited the whole penalty. A court of equity, however, in such a case, would interfere and allow the obligee to recover only what was equitably due; but it never went so far as to decree that the plaintiff should not recover at all. Our statute authorises the court or jury to do what was formerly done by a court of equity.

We are, therefore, of opinion, that the plaintiff in this case is entitled to recover nominal damages, and nothing more ; and advise the superior court to render judgment accordingly.

In this opinion the other Judges concurred.

Judgment for plaintiff for nominal damages only.

(a) In Sterling v. Sherwood, 20 Johns. Rep. 206. Ch. J. Spencer denies that the position laid down by Chitty and Sen. Williams, is law. R.