Stevens v. Stevens — 2 Dem. Sur. 469

Majority

p. 469

New York County.—Surrogate.

Hon. D. G. ROLLINS,

May, 1884.

Stevens v. Stevens. In the matter of the estate of Paran Stevens, deceased.

Headnote

The death of a surety on an executor’s official bond does not relieve the surety’s estate from liability for a subsequent default of the executor in the management of Ills decedent’s estate.

There is no provision of statute requiring the renewal of an executor’s official bond, upon the death of a surety therein, the death not being a removal from the State, within the meaning of Code Civ. Pro., § 2597, which provides for a renewal in the event of such a removal.

Petition by Marietta R. Stevens, widow of decedent, to compel Charles G. Stevens, one of the executors of his will, to file a bond with new sureties. The facts appear sufficiently in the opinion.

Bangs & Stetson, for petitioner.

Bukrikl, Zabriskie & Burrill, for executor.

Mr. Charles G. Stevens is a nonresident executor of this decedent’s estate. In October, 1878, he filed a bond as such executor, with Mr. Charles W. Griswold as surety. Mr. Griswold has since died, and because of his death the petitioner, who is “ interested in the estate,” asks that the executor be required to file a bond with new sureties. Section 2597 of the Code of Civil Procedure provides that the Surrogate may require a new bond to be given by an executor when it appears that a surety is “insufficient,” or that he “has removed or is about to remove from the State,” or that “ the bond is inadequate in amount.”

I have discovered no provision of statute requiring that, upon the death of a surety on an executor’s bond, another bond shall be filed in the place of it.

Counsel for petitioner' claims that death should be deemed a “ removal from the State ” within the meaning of § 2597. If such be the true interpretation of that section, the Legislature was surely somewhat infelicitous in its choice of words.

I should be more disposed to accept the petitioner’s view if I were not of the opinion that, despite Mr. Gris-wold’s death, the parties interested in this estate continue to have the same security which they have hitherto enjoyed, against the possible misconduct of the executor.

The death of one who is a surety upon an official bond, such as that of this respondent, does not relieve his estate of liability for the principal’s after-management of his trust (Mundorrf v. Wangler, 44 N. Y. Sup'r Ct.,495; Voris v. State, Ind., 345 ; Wood v. Leland, 1 Met., 387 ; Moore v. Wallis, 18 Ala., 458 ; Green v.

p. 471

Young, 8 Me., 14 ; Gordon v. Calvert, 4 Russ., 581; Hightower v. Moore, Ala., 387).

Petition denied.