49

not subject to collateral attack on the ground that there was no property belonging to the estate to be administered. Letters of administration which are void on their face may be collaterally attacked by a debtor of the estate whenever the administrator seeks to enforce payment against him.50

663. Relate back to death of decedent-Whenever necessary for the protection of the estate or innocent parties letters of administration will be taken to relate back to the time of the death of the intestate."1 The granting of letters of administration relates back to the death of the intestate and by operation of law makes valid all acts of the administrator in settlement of the estate from the time of the death and protects those who dealt with him in good faith in relation to the estate. It validates his collection of claims and property of the estate before his appointment and he is bound to account therefor.52 The granting of letters by relation vests in the administrator causes of action arising after the death of the decedent and before the granting of letters.53

664. Protect parties acting in reliance thereon-While in force letters of administration are a protection to all persons who act in reliance thereon in good faith provided the court issuing them had jurisdiction of the subject-matter. If they are revoked because issued to a person not entitled thereto, or for any other reason not going to the jurisdiction. of the court over the subject-matter, the revocation does not affect those who have acted in reliance thereon in good faith."

665. Effect of appointing person not entitled to appointment-The appointment of a person not entitled to letters is not void and subject to collateral attack, but may be set aside on direct attack. While in force it is a protection to all persons who act in good faith in reliance thereon, provided the court had jurisdiction of the subject-matter.55

49 Taylor v. Badger, 226 Mass. 258, 115 N. E. 405.

50 State v. Probate Court, 149 Minn. 464, 184 N. W. 43.

51 Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Id., 32 Minn. 81, 19 N. W. 391; Wiswell v. Wiswell, 35 Minn. 371, 29 N. W. 166.

52 Alvord v. Marsh, 12 Allen (Mass.) 603; 11 A. & E. Ency. of Law (2 ed.) 908; 18 Cyc. 213; 23 C. J. 1180; Woerner, Am. Law of Adm. (2 ed.) § 187.

53 Noon v. Finnegan, 29 Minn. 418, 13 N. W. 197; Id., 32 Minn. 81, 19 N. W.

391; 11 A. & E. Ency. of Law (2 ed.) 909; 18 Cyc. 176; 23 C. J. 1181.

54 Fridley v. Farmers & Mechanics Sav. Bank, 136 Minn. 333, 162 N. W. 454; State v. Probate Court, 149 Minn. 464, 184 N. W. 43; 18 Cyc. 141; 23 C. J. 1085; 14 A. L. R. 619. See §§ 659, 665.

55 Pick v. Strong, 26 Minn. 303, 3 N. W. 697; Fridley v. Farmers & Mechanics Sav. Bank, 136 Minn. 333, 162 N. W. 454. See McNamara v. Casserly, 61 Minn. 335, 63 N. W. 880; 18 Cyc. 141, 143; 23 C. J. 1088.

BONDS OF REPRESENTATIVES

56

666. General bond-Statute-Every representative, before entering upon the duties of his trust, shall give a bond in such sum as the court directs, with sufficient sureties, conditioned for the faithful discharge of all the duties of his trust according to law. The duty of a representative to give a bond is absolute and the probate court cannot excuse him. An executor must give a bond though the testator in his will requests that none be required of him.57 When a representative is the sole or residuary legatee and gives the special bond authorized by G. S. 1913, § 7417, he need not give the general bond required by G. S. 1913, § 7416.58 The failure to give a bond does not render the appointment of the representative void and subject to collateral attack. The probate court may require a bond of an administrator appointed to prosecute an action under the statute for death by wrongful act."0

60

59

667. Form and contents of bond-Conditions-The statute provides that bonds shall run to the probate judge and his successors in office."1 The general bond of a representative is conditioned for the faithful discharge of all the duties of his trust according to law.62 The bond of an administrator is substantially the same as that required of an executor.63 It is no objection that a bond does not name the person who is probate judge. Letters testamentary or of administration cannot be collaterally attacked for insufficiency of the bond. A grant of letters is an adjudication of the sufficiency of the bond.65

64

668. Several representatives-Joint or separate bond-Statute-When two or more persons are appointed joint executors, administrators, or guardians, the court may take a separate bond from each, or a joint bond from all.66 If a joint bond is executed by several representatives

56 G. S. 1913, § 7416.

57 Chamberlain v. Husel, 178 Mich. 1, 144 N. W. 549; 11 A. & E. Ency. of Law (2 ed.) 864; 18 Cyc. 128, 131; 23 C. J. 1069.

58 G. S. 1913, § 7417; Olson v. Fish, 75 Minn. 228, 77 N. W. 818.

59 Olson v. Fish, 75 Minn. 228, 77 N. W. 818; Harris v. Chipman, 9 Utah 101, 33 Pac. 242; Ions v. Harbison, 112 Cal. 260, 44 Pac. 572; 11 A. & E. Ency. of Law (2 ed.) 868; 18 Cyc. 131; 23 C. J. 1077; Woerner, Am. Law of Adm. (2 ed.) § 253.

60 Vukmirovich v. Nickolich, 123 Minn. 165, 143 N. W. 255.

61 See § 670; Berkey v. Judd, 34 Minn. 393, 26 N. W. 5; O'Gorman v. Lindeke, 26 Minn. 93, 1 N. W. 841; Lanier v. Irvine, 24 Minn. 116.

62 § 666; Balch v. Hooper, 32 Minn. 158, 162, 20 N. W. 124; Vukmirovich v. Nickolich, 123 Minn. 165, 143 N. W. 255. See, as to the sufficiency of conditions under former statutes, Lanier v. Irvine, 21 Minn. 447; Mumford v. Hall, 25 Minn. 347.

63 Olson v. Fish, 75 Minn. 228, 77 N. W. 818.

64 Buel v. Dickey, 9 Neb. 285, 2 N. W. 884.

65 Mumford v. Hall, 25 Minn. 347. 66 G. S. 1913, § 7418.

each becomes liable for the others unless the bond provides otherwise. They are principals. as to the joint sureties and are therefore bound to protect the sureties from each other's acts.67

669. Guardians and sureties when discharged-Statute-Whenever a guardian's annual account is adjusted and settled, and it appears that the proceeds of any sale or mortgage of real estate have been included in such account, if the original general bond given on his appointment is found to be then sufficient, or, if insufficient, upon the filing and approval of a new and sufficient general bond, the court, by its order, may cancel any sale bond previously given, provided that when a new bond is given the sureties thereon shall be liable for the full amount of personalty shown by such account as settled to be in the guardian's hands.68

670. Run to probate judge-Approval-Leave to sue on-StatuteAll bonds authorized or required by law in proceedings in the probate court, or in respect of any estate under administration therein, save as ⚫ otherwise expressly provided, shall be approved by the probate judge, and shall run to such judge and his successors in office; and, in case of breach of any condition thereof, such bond may be prosecuted by leave of said court in the name and for the benefit of any person interested.69

99 70

671. Amount of bond-There is no statute in this state fixing the amount of the bond except that it shall be "in such sum as the court directs." As a general rule it is proper to make the amount of the bond double the value of the personal property and the annual income from the real property. Under special circumstances, however, the amount may properly be much less or even nominal, as, for example, where the representative is the sole or chief beneficiary and there are no debts, or debts for only a trifling amount. A request of a testator in his will that only a nominal bond should be required is not controlling.71

672. Additional bonds-Statute-Whenever any probate court becomes satisfied that the bond of any representative is insufficient, it may require an additional bond on its own motion or upon the petition of any one interested in the estate of the decedent or ward; and a refusal or failure to furnish such bond within a reasonable time shall be sufficient cause for removal.72 The sureties on the additional bond are liable for the acts and omissions of the representative and for assets received by him before as well as after its execution. The remedy on the

67 11 A. & E. Ency, of Law (2 ed.) 881; 18 'Cyc. 1250; 24 C. J. 1060; Woerner, Am. Law of Adm. (2 ed.) § 258; 13 Prob. Rep. Ann. 277.

68 G. S. 1913, § 7420.

69 G. S. 1913, § 7421.

70 See § 666.

71 11 A. & E. Ency. of Law (2 ed.) 872 ; 18 Cyc. 131; 23 C. J. 1072: Woerner, Am. Law of Adm. (2 ed.) § 257.

72 G. S. 1913, § 7422. Cited arguendo, Eaton v. Gale, 96 Minn. 161; 104 N. W. 833.

additional bond is cumulative. The liability of the sureties on the original bond is unaffected.78 A recital in an additional bond that it was given pursuant to an order of court at a specified time is conclusive on the surety.

74

673. Deposit of securities with trust company to reduce additional bond-Statute-Provision is made by statute for depositing part of the securities of an estate with a trust company and fixing the amount of an additional bond with reference only to the remainder."

76

674. Discharge of sureties on application to court-Statute-Upon application of any surety on a probate bond to be discharged from further liability as such, the court shall order the principal therein to furnish a new bond within ten days after service upon him of such order. On failure to furnish such new bond, such principal shall be removed, and required to render and settle his account at the earliest practicable time. When the new bond has been given and approved, the surety shall be discharged from liability for any subsequent act or omission of such principal, and the court shall so order. Upon application of such surety, the court shall require the principal, as soon as practicable, to render and settle an account of all his prior doings. The right of a surety to discharge under the statute is absolute. The probate court has no discretion if proper application is made." A surety cannot be discharged on the application of the principal.78 A discharge under the statute does not relieve the surety from acts or defaults of the representative prior to his discharge." Where proceedings are had under the statute and the representative appears therein and files a new bond which is approved, the sureties on the old bond are thereby discharged without any formal order of court, though such order should regularly be made. A discharge by the court of one surety on a bond and the giving of a new bond will discharge the other surety, at least if done without his knowledge or consent.81

80

675. Annual examination of bonds by probate judge-Statute-At least once in 'each year every probate judge shall carefully examine all

73 Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978; Ellyson v. Lord, 124 Iowa 125, 99 N. W. 582; Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714, 40 Pac. 229; Choate v. Arrington, 116 Mass. 552; Scofield v. Churchill, 72 N. Y. 565; 11 A. & E. Ency. of Law (2 ed.) 880; 18 Cyc. 1251; 23 C. J. 1079; Woerner, Am. Law of Adm. (2 ed.) § 255.

74 Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978.

75 G. S. 1913, § 6411.

76 G. S. 1913, § 7423. See 11 A. & E. Ency. of Law (2 ed.) 897; 18 Cyc. 1265;

23 C. J. 1081; Woerner, Am. Law of Adm. (2 ed.) § 255.

77 Allen v. Sanders, 34 N. J. Eq. 203; Lane v. State, 27 Ind. 108.

78 Clark v. American Surety Co., 171 Ill. 235. 49 N. E. 481. See Bellinger v. Thompson, 26 Or. 320, 37 Pac. 714, 40 Pac. 229.

79 McKim v. Blake, 132 Mass. 343. 80 Lane v. State, 29 Ind. 108.

81 McKim v. Demmon, 130 Mass. 404. See Elizalde v. Murphy, 146 Cal. 1C8, 79 Pac. 866.

bonds on file in his office and in force pending the settlement of estates, for the purpose of ascertaining the solvency of the sureties thereon, and, if satisfied that any such bond is insufficient, he shall order an additional bond to be given.82

676. Time within which to give bond-The statutory limitation of twenty days within which an executor must give bond after the probate of a will is probably directory and the court may extend the time. The fact that an administrator does not present his bond for approval until several days after the issue of letters to him and the taking of the oath of office does not require the issuance of new letters after such bond is given.84

86

85

677. Duration of liability-Normally the sureties remain liable so long as the probate court retains jurisdiction of the estate and until the representative is formally discharged by the court as provided by law. 678. Discharge of representative-A final discharge of a representative as provided by statute ordinarily terminates the liability of himself and the sureties on his bond. The approval of the final report of an administrator and discharging him is a complete adjudication of the account, and no action lies against him or his sureties, on his bond, to compel a restitution of money represented by an alleged fraudulent credit, until the judgment has been set aside in a direct attack, the validity of the judgment not being open to collateral attack. An order discharging the representative obtained by fraud does not release. his sureties.88

679. Supposed decedent living-A bond of a representative is void if the supposed decedent is in fact living.

89

680. Bonding company as surety-Bonding companies may act as sureties on the bonds of representatives and the expense thereof may be allowed on the final accounting of the representative.9°

91

681. Justification of sureties-The statute (G. S. 1913, §§ 8231, 8232) relating to the justification of sureties on "official" bonds probably does not apply to bonds of representatives. A probate judge cannot arbitrarily reject a bond, but may require the sureties to justify if there is any reasonable doubt of their responsibility, and the supreme court

82 G. S. 1913, § 7424.

83 See In re Schnorenberg, 150 Wis. 537, 137 N. W. 752.

84 Ions v. Harbison, 112 Cal. 260, 267, 44 Pac. 572.

85 Deabold v. Oppermann, 111 N. Y. 531, 19 N. E. 94; Williams v. State, 68 Miss. 680, 10 So. 52; Walber v. Wilmanns, 116 Wis. 246, 93 N. W. 47.

So See §§ 1144, 1336.

87 Tucker v. Stewart, 147 Iowa 294, 126 N. W. 183.

88 Tucker v. Stewart, 147 Iowa 294, 126 N. W. 183.

89 Springer v. Schavender, 116 N. C. 12, 21 S. E. 397.

90 G. S. 1913, §§ 8235, 8238; Cozad v. Hibner, 97 Neb. 780, 151 N. W. 316.

91 See Bissell v. Wayne Probate Judge, 58 Mich. 237, 24 N. W. 886; Blied v. Barnard, 120 Minn. 399, 139 N. W. 714.