§ 1358. Misrepresentations of Principal to Surety Do Not Release Latter. The wealth or insolvency of the executor or administrator, or the value, condition and situation of the testator's estate may be proper matters for sureties to investigate in determining whether or not they will become sureties, but such matters are not pertinent in determining the liability of sureties, nor can the sureties urge any misrepresentations by the principal either regarding his own circumstances or those of the estate as a reason for evading liability.88 § 1359. Surety Liable Only for Acts of Principal in Line with Duties of Office. The sureties on the bond of an executor or administrator are liable only for acts or omissions in line with the duties of his office. Should the legatee accept the individual check of the executor for the amount of his legacy, under a private agreement and receipt in full for his distributive share, the fact that the check is dishonored does not give such legatee a right of action against the sureties on the executor's bond. The drawing of his individual check by the executor is an act separate and distinct from the duties of his trust.89 Where all the heirs at law entitled to certain land, by an agreement among themselves dispense with further administration regarding such land and join in a deed conveying it to a purchaser at private sale, the effect of Neal, 11 Okla. 526, 69 Pac. 893; Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229. 88 Treweek v. Howard, 105 Cal. 434, 39 Pac. 20. To the same effect, see Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978; McGaughey v. Jacoby, 54 Ohio St. 487, 44 N. E 231. 89 Riggin v. Creath, 60 Ohio St. 114, 53 N. E. 1100. the conveyance is to vest in the purchaser the title to the property. Should the heirs intrust to the person who is administrator of the estate and also an heir the delivery of the deed to the purchaser on payment to him of the purchase money, the fact that such administrator and heir received the money and failed to pay it over according to the agreement imposes no obligation on the sureties on the bond of such administrator. It was no part of the duty of the administrator to receive such money and as administrator he was not entitled to receive it. If he did accept such money it was not a part of the duties of his office and his sureties can not be held liable."0 The sureties on the bond of an administrator who collects moneys which are not assets of the estate nor subject to distribution by him, and which he is not entitled to as the legal representative of the decedent, are not liable for any appropriation or use of the same by the administrator for his personal benefit.91 Where the statute provides that the executor of a deceased executor has no right as such to administer the estate of the first testator, if the executor of the first executor collects assets of the estate of the first testator after the death of the first executor and which had never been in the hands of the first executor, his action is an intermeddling with the assets of an estate regarding which he has no right of administration, and if he appropriate or waste any of such assets, the sureties on the bond of the first executor are not liable therefor.92 90 Churchill v. Bertrand, 3 Q. B. 568; Johnson v. Hall, 101 Ga. 687, 689, 29 S. E. 37. 91 Pace v. Pace, 19 Fla. 438, 454; People v. Huffman, 182 Ill. 390, 55 III Com. on Wills-17 N. E. 981; Robinson v. Millard, 133 92 Robbins V. Burridge, 128 Mich. 25, 87 N. W. 93; Quinby v. Walker, 14 Ohio St. 193. § 1360. Liability of Surety of Executor Who Is also Trustee. Although the office of executor is distinct and independent from that of trustee, yet where they are both created in one will, and one party is named as both executor and trustee, the proving of the will and qualifying as executor constitute an acceptance of the trust.93 Or if a trust is created by the will and no trustee is named, the executor is bound to act as trustee.94 If one as executor takes possession of the assets of an estate and never claims to hold them in his capacity as trustee, the sureties on his bond as executor are liable for any waste or misappropriation on his part. The executor and the sureties on his bond will be bound for his acts until such time as he accounts as executor and qualifies as trustee. There must be some open and notorious act done by the executor whereby it may be known that he has crossed the line which separates the capacity of executor from that of trustee.95 § 1361. Surety Paying Claim Is Entitled to Subrogation. A surety on the bond of an executor or administrator who has paid a debt or obligation of his principal arising out of matters of administration regarding which the 93 Mucklow v. Fuller, Jacob 198. 94 Holbrook v. Harrington, 16 Gray (Mass.) 102. 95 McBurney v. Carson, 99 U. S. 567, 572, 25 L. Ed. 378; Williams v. Cushing, 34 Me. 370; Conkey v. Dickinson, 13 Metc. (Mass.) 51; White v. Ditson, 140 Mass. 351, 54 Am. Rep. 473, 4 N. E. 606; Cranson v. Wilsey, 71 Mich. 356, 39 N. W. 9; State v. Branch, 134 Mo. 592, 596, 56 Am. St. Rep. 533, 36 S. W. 226; In re Higgins' Estate, 15 Mont. 474, 28 L. R. A. 116, 39 Pac. 506, 507; Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229; Newport Probate Court v. Hazard, 13 R. I. 1. Compare: The sureties on the bond of an executor under a will, who is also made trustee to collect the proceeds of a certificate of life insurance and distribute the same as provided in the will, bond was given, is entitled to be subrogated to and have the benefit of any security in the hands of the creditor. The fact of payment is an equitable assignment of such securities. In case an administrator pays out all legacies prior to notice of a claim which he is thereafter compelled to pay, he is entitled to a bill against the legatees to compel them to refund to him the amount which he was compelled to pay without culpability on his part. The executor or administrator should be substituted to the rights of the creditor whom he has paid.9 § 1362. Power of Court to Relieve Surety from Further Liability. The power of the court to relieve a surety on the bond of an executor or administrator from liability is purely statutory. After the bond is once given, heirs, beneficiaries or creditors acquire a vested interest in it, and the court can not relieve a surety from further liability unless it is authorized to do so by statute. In no case, however, can a surety be relieved from liability for acts of his principal prior to the time of the order of court relieving him from further liability. In some states the statutes provide that a surety may on his own petition and with notice to interested parties, obtain an order discharging him from further liability on the bond of an executor or administrator, but because a court has power to require a bond of an executor or administrator it does not follow that the court may release the sureties on the and who gives the bond as executor but not as trustee, are not liable for any misappropriation of the funds which the principal received as trustee, although he included them in his account as executor.-People v. Petrie, 191 Ill. 497, 85 Am. St. Rep. 268, 61 N. E. 499. 96 Baldwin v. Alexander, 145 Ala. 186, 40 So. 391. bond or allow a new bond to be substituted in place of one theretofore given.97 § 1363. Liability of Surety for Debts Due from Executor to Decedent. The common law rule that the appointment by the testator in his will of his debtor as executor was an extinguishment of the debt, has been abrogated by statute in most jurisdictions.98 By statute it may be declared that any debt due from the executor to the testator in his lifetime must be included in the inventory and the executor be liable for the same as so much money in his hands.99 But such a statute should not be construed alone and the general rule is, and often so provided by statute, that an executor or administrator shall not be accountable for any debts due the decedent if it appears that they remain uncollected without fault on his part.1 It is a fiction of law that moneys owing by an executor or administrator to the decedent is money in his hands since he can not sue himself for the collection of the debt. Thus if the executor or administrator fail to account for and pay over the amount owing by him, the liability of the sureties has been held to be fixed so as to authorize a suit upon the bond.2 But the fiction of possession should not be allowed to work an injustice. It may be that the executor at no time had the means to enable him to pay the debt or any part thereof, and the better rule is that he should not be charged for his personal debt to 97 Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 720, 40 Pac. 229. This right is vested in the court by statute in California. See Code Civ. Pro., § 1403. 98 See § 1213. 99 Cal. Code Civ. Pro., § 1447. 1 Cal. Code Civ. Pro., § 1615. 2 Treweek v. Howard, 105 Cal. 434, 446, 39 Pac. 20. |