Hewlett v. Beede

On June 23, 1893, Alonzo McCloud a resident of San Joaquin county, California, died testate, and in due time his will was admitted to probate and the court appointed B. D. Baldwin and Samuel Hewlett, executors. Each, qualifying, gave separate bonds, each in the sum of $25,000. The sureties on the bond of B. D. Baldwin were J. D. Mc-Dougald, Joseph H. Swain, Mary A. Baldwin, Joseph Fyfé, and W. M. S. Beede; each of said sureties qualifying in the sum of $10,000. The sureties on the bond of the said Samuel Hewlett were Henry Meyers for $10,000, L. Hewlett for $10,000, G. W. Trahern for $10,000, B. S. Johnson for $10,000, G. Gianelli for $5,000, and B. Gianelli for $5,000. On November 11, 1896, a decree was made and entered settling the final account, and the said executors jointly charged themselves with a balance of cash on hand subject to distribution of $2,503.21. On or about November 24, 1896, Wayne McCloud, then a minor, by his guardian, and Bessie Logan, legatees and devisees under the will of said Alonzo McCloud, filed their petition for a partial distribution, and on January 2, 1897, the court made and entered its decree adjudging that one-half of said $2,503.21 belonged to said Wayne McCloud and Bessie Logan. The said executors then placed in the Bank of Hollister, under an agreement between them and Wayne McCloud, in their individual names, but in trust for the said Wayne McCloud, the sum of $598, which was the sum distributed to him after the payment of certain taxes. On October 5, 1897, the said executor, Baldwin, died. On December 19, 1897, the said Wayne McCloud became of age and then demanded of executor Hewlett that he order the said bank to receive and retain the money deposited therein as the money of Wayne McCloud and credit the same on his indebtedness to the bank. After this the said Bessie Logan assigned her interest to Wayne McCloud, and he thereupon made the same request and demand of said executor, Hewlett, in relation to this money, as he had of his own $598; but said Hewlett neglected to comply with such demand and did not pay the same over to said Wayne McCloud. Whereupon the said Wayne McCloud brought suit against said Hewlett, as executor, and the said sureties on his bond, for the recovery of said moneys; and on the sixth day of December, 1899, the court rendered judgment against said Hewlett and his said

“Every executor and administrator is chargeable in his account with the whole of the estate of the decedent which may come into his possession.” (Code Civ. Proc., sec. 1613.) “When two or more persons are appointed executors or administrators, the superior court, or a judge thereof, must require and take a separate bond from each of them. ” (Code Civ. Proc., sec. 1391.) In Re Sanderson, 74 Cal., at page 214, [15 Pac. at page 762], the court held that: “Coexecutors are not liable to each other, but each is liable to the cestui que hust to the full extent of the funds he received.” In the case of McCloud v. Hewlett, 135 Cal. 361 , [ 67 Pac. 333 ], the court held that Hewlett .and his sureties were liable to McCloud, who was the cestui que trust. The appellant claims that the case at bar is a parallel ease where an officer is required to give additional bond, and quotes section 969 of the Political Code, which reads as follows: “Whenever the sureties on either bond have been compelled to pay any sum of money on account of the principal obligor therein, they are entitled to recover, in any court of competent jurisdiction, of the sureties on the remaining bond a distributive part of the sum thus paid, in the proportion which the penalties of such bonds bear one to the other, and to the sums thus paid, respectively” —and then urges that, where there are two executors who give separate bonds, the same rule applies as to contribution of sureties on each bond, and cites section 981 of the Political Code to sustain such contention. The section reads as follows: “The provisions of this article apply to the bonds of

It must be borne in mind that this action is one in which the plaintiff prosecutes the cause, not in his representative capacity as executor, but in his private capacity against those who were sureties on the bond of Baldwin as an executor of the McCloud will, who is-now dead. It is sought to recover from these sureties $86.75, which plaintiff’s sureties paid for him in a suit by the heir, and the further sum of $300.50, claimed to have been expended by plaintiff as costs in the action the heir brought against him and his sureties. The plaintiff had repaid his sureties the $860.75, and therefore brings the suit in his own name. Whatever obligation rests upon the defendants arose upon a bond given by Baldwin, as executor. They were liable, if at all, only upon that bond, and they are entitled to stand upon the precise terms of their contract. Their liability is limited by the terms and conditions of the bond on which they are sureties, and such liability cannot be 'extended by implication beyond its terms. “A surety cannot be held beyond the express terms of his contract.” (Civ. Code, sec. 2836; Heinlen v. Beans, 71 Cal. 295 , [ 12 Pac. 167 ]; San Luis Obispo v. Farnum, 108 Cal. 562 , [ 41 Pac. 445 ]; Heidt v. Minor, 89 Cal. 115 , [ 26 Pac. 627 ]; Elder v. Kutner, 97 Cal. 490 , [ 32 Pac. 653 ]; County of Glenn v. Jones, 146 Cal. 518 , [ 80 Pac. 695 ].) So far as the principal in a bond of this kind is concerned, the obligation of the surety is to answer to the heir for his breach of duty and not for a breach of duty to any other person who may have been invested with the same character of trusts with respect to the same estate. As between Baldwin and Hewlett, the former may have become personally

It is admitted by the pleadings that the “said executors verified and filed their joint final account of their proceedings in said estate; that the same was upon due notice given, heard, and considered by said superior court, wherein said settlement of said estate was pending and was thereupon duly allowed, approved and settled by the decree of said court, which was then and there given, made, and entered, and recorded on the eleventh day of November, 1896”; and that said decree showed the executors had in their hands the sum of $2,503.21, which was the remainder of said estate after paying all claims and expenses and commissions. Baldwin died October 5, 1897, and the heir demanded his portion of the

The appellant had permitted Baldwin to handle the funds of the estate without any reason, further than that he was a lawyer and knew more about it. The funds being lost in part through Hewlett’s negligence, as has been shown, he became jointly liable with Baldwin and also severally. The heir ignored the joint liability, as he had a right to do, and sued Hewlett without joining Baldwin’s sureties, and recovered judgment, which Hewlett paid, and now Hewlett, in his individual capacity, seeks to recover from these sureties what he was compelled to pay the heir, and also $300 costs of that action. The costs in no sense could be a charge against the sureties on Baldwin’s bond, for the reason that any action the appellant could have maintained would have been one as executor against his coexeeutor to recover for the heir the estate lost by Baldwin, and the costs sued for here' were not made in such an action, but in an action brought by the heir and against executor Hewlett. This is not an action between joint obligors, or cosureties, where the right of action would not accrue until payment had been made by one of those jointly liable; but the right of appellant here accrued at least when Baldwin died or immediately on the happening of the default. Baldwin’s death occurred more than four years next prior to the commencement of this action, and the demand of the heir on Hewlett was made more than four years before the commencement of this action. If any right of action existed against these defendants as the sureties on Baldwin’s bond, the statute of limitations was set in motion as soon as Hewlett, by his own action, could have made the

The case was brought and tried by the appellant upon the theory that the sureties on Baldwin’s bond were joint obligorswith sureties on Hewlett’s bond. This is a mistaken idea, as we have plainly pointed out. The authorities cited by appellant are those relating to contribution by joint or co-obligors and therefore do not apply to this case. Again, appellant proceeds upon the theory that he could not have commenced the action against Baldwin until he had paid over the estate.

For the reasons herein stated, the action, being a personal matter between Hewlett and Baldwin, cannot be maintained against the sureties of Baldwin’s bond as executor. Plaintiff’s cause of action is barred by the provisions of section 337 of the Code of Civil Procedure.

The judgment is affirmed.

Chipman, P. J., and McLaughlin, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on January 29, 1906.