investigated and fixed. Clearly, therefore, the same reason applies to distributees, as to creditors and legatees.

But it is contended the principle ought not to be extended to this case, because this is not an original administration bond, nor a joint administration bond. That it was given in part at the instance of the co-executor, and for his security. That the co-executor petitioned for the citation, and resisted the payment to William Stub, the other executor, of any portion of the proceeds of the real estate. That a suit against the executors must be a suit against both; but the bond is given by one. To hold, therefore, as the defendants in error contend, that both executors must be prosecuted to insolvency, before the bond, specially and voluntarily given, can be made available to the distributee, of which the co-executor is one, is carrying the doctrine much further than in the case of Myers v. Fretz, and is defeating the very object of the bond. These suggestions are more plausible than sound. Although this is neither an original nor a joint bond, it comes within the reason of a rule designed for the protection of the sureties, who ought not to be held liable until the amount of the indebtedness of the principal is ascertained. It is not intended for the security of the co-executor alone, but for the benefit of every person interested in the estate, whether they be creditors, legatees, or distributees. Although not an original administration bond, it partakes of the nature of an original bond, and is designed for the same purpose. If, as supposed, the distributee would be bound to sue both the executors, and prosecute them to insolvency, it would present some difficulty; but I do not see the necessity of either course. It is not required that the principal should be pushed to insolvency, as may be inferred from an inadvertent expression in Myers v. Fretz. A judgment at law, or a decree of the orphans' court, fixing the amount of their personal responsibility, is all that is necessary as a prerequisite to suit on the bond: Commonwealth v. Evans, 1 Watts, 437; Commonwealth v. Wenrick, 8 Id. 160. Nor would it be required, under the facts disclosed, to bring an action against both the executors. A suit against William Stub, who alone sealed the bond, or, what perhaps would be the better mode, a decree against him by the orphans' court, would suffice.

As the cause is affirmed for the reasons given, it becomes unnecessary to notice the bill of exceptions to the admission of the testimony, except merely to remark that we see no material

difference between the case as now presented, and the same case reported in Stub v. Stub, 3 Pa. St. 251.

Judgment affirmed.

PROCEEDINGS ON EXECUTORS' AND ADMINISTRATORS' BONDS are so entirely regulated by statute, and the statutes of the different states vary so greatly, that it is exceedingly difficult to lay down general rules upon the subject. It would swell this note to undue proportions to attempt a collection of these differing statutory provisions, and we shall, therefore, content ourselves with an examination of the adjudged cases relating to the principal branches of the subject, occasionally referring to peculiarities in local legislation which have produced apparent conflict in the decisions.

BOND COULD NOT BE REQUIRED OF AN EXECUTOR BY THE ECCLESIASTICAL COURTS in England for the due administration of assets, where the testator did not direct that a bond should be given: 4 Burn's Ecc. Law, 176; 1 Wms. on Ex'rs, 6th Am. ed., 275; Rex v. Raines, 1 Ld. Raym. 361; S. C., 1 Salk. 299; Jones v. Hobson, 2 Rand. 488; Eaton v. Benefield, 2 Black f. 52. But where the executor was insolvent, the court of chancery could intervene and require security, as in the case of any other trustee: 1 Wms. on Ex'rs, 6th Am. ed. 276. And, in most of the American states, bonds are required of executors the same as of administrators, except where a bond is dispensed with by an express provision in the testator's will; although in some states a bond will be required of an executor only when it appears to be necessary for the security of the estate: Id. 277, Perkins' note. When bonds are required they are governed by the same rules, with respect to the liability of the obligors, as the bonds of administrators: Hood v. Hood, 85 N. Y. 561.

EXTENT OF SURETIES' LIABILITY ON BONDS. 1. Generally.-The rule applicable to official bonds in general, that the sureties therein are liable only for the official acts and defaults of the principal, and for funds in his hands in his official capacity, applies also to administrators' and executors' bonds: Gregg v. Currier, 36 N. H. 200. So the principal himself is liable on his bond only for official acts and defaults. Hence, as respects any remedy for his misconduct by a proceeding on the bond, his liability and that of his sureties are co-extensive: Wattles v. Hyde, 9 Conn. 10; Hobbs v. Middleton, 1 J. J. Marsh. 178. "They are responsible on their bond whenever he is; and when he is not, they are not; and consequently, when they are not, he is not:" Hobbs v. Middleton, supra. This is, no doubt, the general rule; but it does not follow that there can always be a recovery on the bond against the sureties whenever there can be a recovery against the principal, for although, as respects the act or default which constitutes the cause of action, their liability may be the same, he may, in certain cases, be estopped by some act or admission from making a defense which is open to them.

2. Liability for Proceeds or Rents and Profits of Realty.-At common law land was not assets for the payment of the decedent's debts, and the executor or administrator had nothing to do with it, except where it was devised to be sold, and even then the proceeds were equitable and not legal assets: 1 Wms. on Ex'rs, 6th Am. ed., 728, 729. And under statutes subjecting the realty of a decedent to the payment of his debts, the general rule is that it can be sold only upon an order of the probate court in case of a deficiency of the personal estate; and, subject to this contingency, it descends to the heir. In some states it has been held that the sureties on an administration bond are not liable for the proceeds of the sale of realty, even though sold under an

order of court for the payment of debts: Beall v. Commonwealth, 17 Serg. & R. 392; Commonwealth v. Hilgert, 55 Pa. St. 236. So in Maryland prior to the act of 1831, but otherwise under the provisions of that act: Cornish v. Wilson, 6 Gill, 299. So in Indiana under a statute requiring a separate bond to be given upon an application for an order for the sale of realty: Reno v. Tyson, 24 Ind. 56. But in Alabama the administration bond covers the proceeds of a sale of realty, even though a special bond is required on the application for sale: Clarke v. West, 5 Ala. 117. And in other states it is held that the administration of such proceeds is within the bond: Governor v. Chouteau, 1 Mo. 731; Wade v. Graham, 4 Ohio, 126. So under the express provisions of the statute in Massachusetts: Bennett v. Overing, 16 Gray, 268; Hannum v. Day, 105 Mass. 38. In Missouri it is held that the sureties are liable for a failure to account for the proceeds of a sale of realty made with. out an order of court: State v. Scholl, 47 Mo. 84. And in Indiana, where a sale is made without an order, but the probate court takes cognizance of it and requires the execution of a bond to account for the proceeds, the sureties thereon are liable for a failure to account therefor: Fleece v. Jones, 71 Ind. 340. But in New Jersey, where lands not specified in an order of sale were sold, the sureties of the administrator were adjudged not to be liable for the applica tion of the proceeds: Matter of Givens, 34 N. J. Eq. 191. In Virginia, in some early cases, it was determined that where lands were sold under a direction in the will, the proceeds were equitable assets, and the sureties on the executor's bond were not responsible therefor: Jones v. Hobson, 2 Kand. 483; Burnett v. Harwell, 3 Leigh, 89. So in Kentucky, upon a bond executed under the statute of 1797, conditioned to account for and faithfully administer the "goods, chattels, and credits" of a decedent, it was held that the sureties were not liable for the misapplication of equitable assets; otherwise under the act of 1838: Speed's Ex'r v. Nelson's Ex'r, 8 B. Mon. 505. But in Pennsylvania, under a bond conditioned to account for goods, chattels, and credits, it has been held that the sureties of an executor or administrator cum testamento annexo are liable for the proceeds of a sale of land under a power in the will: Commonwealth v. Forney, 3 Watts & S. 353; Zeigler v. Sprinkle, 7 Id. 175. So in New York, the sureties of an executor are liable for the misapplication of the proceeds of realty sold under a direction in the will, the direction to sell being regarded as an equitable conversion of the realty into personalty; Hood v. Hood, 85 N. Y. 561.

Money paid to an executor or administrator by the owners of realty liable to be sold for the payment of debts and legacies, is assets for which the sureties are liable on their bond: Fay v. Taylor, 2 Gray, 154. So money awarded for land taken for public use, where the administrator has levied thereon and the time for redemption has expired: Phillips v. Rogers, 12 Met. 405. So in Pennsylvania, notwithstanding the rule in that state that sureties of an administrator are not liable for the proceeds of realty sold for the payment of debts, if the administrator embezzles the personalty, so that it is necessary to sell the realty to pay debts, the sureties of the administrator are liable to the heirs: Commonwealth v. Keil, 9 Phil. 140, distinguishing Commonwealth v. Hilgert, 55 Pa. St. 236. Where land is sold in another state, and the administrator receives the proceeds, his sureties are liable therefor: Judge of Probate v. Heydock, 8 N. H. 491.

As a consequence of the doctrine that realty descends immediately to the heirs under statutes making it liable for the payment of debts upon a deficiency of the personalty, subject to a contingent power of sale in the admin. istrator, under the order of the court, the sureties of the administrator are

not, as a general rule, liable for the rents and profits of such realty collected by their principal after the intestate's death: Brown v. Brown, 2 Harr. (Del.) 5; Slaughter v. Froman, 2 T. B. Mon. 94; Hartz's Appeal, 2 Grant, 83; Allen v. Burton, 1 McMull. 249; Hutchenson v. Pigg, 8 Gratt. 220. So even where the word "rents" is used in the bond, that term being held to apply to rents due at the time of the decedent's death: Wilson v. Unselt's Adm'r, 12 Bush, 215. So where an executor is directed by the will to sell realty and fails to do so, his sureties are not liable for the rents and profits thereof, as they follow the title: Gregg v. Currier, 36 N. H. 200. But in Missouri the sureties of an administrator are liable for the application of rents and profits of realty received by him: Strong v. Wilkinson, 14 Mo. 116. So in Massachusetts, under a statute requiring an executor to account for rents, unless they are collected after his removal from office: Brooks v. Jackson, 125 Mass. 307. So in Alabama it is held that an executor and his sureties are liable for the rental value of land which he could have rented, but did not: May v. Kelly, 61 Ala. 489.

3. Liability for Proceeds of Sale of Slaves.-In the late slave states slaves were regarded as partaking, in some respects, of the nature of real property; and under a devise of such property to be sold, it was held in Tennessee that the proceeds were equitable assets, for which the sureties on the executor's bond were not liable: Wall v. Allen, 4 Baxt. 210. So where they were sold under an order of the probate court for the payment of debts, the sureties of the executor or administrator were not liable for the proceeds: Gambill v. Campbell, 12 Heisk. 737; Barksdale v. Butler, 6 Lea, 450.

4. Liability for Assets Received from Another State.-The sureties of an administrator are liable only for assets received within the state, or which should have been received there: Fletcher v. Weir, 7 Dana, 345; Governor v. Williams, 3 Ired. L. 152. But where the administrator of the domicile receives within the state property or funds of the decedent from an ancillary administrator in another state, his sureties are liable therefor: Fletcher's Adm'r v. Sanders, 32 Am. Dec. 96; Pratt v. Northam, 5 Mason, 95. A judgment in favor of the decedent in another state is assets there, and the sureties of the administrator of the domicile are not liable for his omission to include the same in the inventory; but if the administrator sues on the judgment within the state, and recovers and appropriates the amount to his own use, and fails to account for it, the sureties are liable: Strong v. White, 19 Conn. 238. So where the administrator goes into another state where the intestate died, and where no administrator has been appointed, and, without qualifying there, receives assets and brings them within the state of his appointment, his sureties are liable therefor: Andrews v. Avory, 14 Gratt. 229. The sureties of an ancillary administrator are not liable for assets beyond the jurisdiction appointing such administrator: Fletcher's Adm'r v. Sanders, supra. As to liability for proceeds of a sale of land in another state, see ante, 2.

5. Liability for Debt Due from Principal to the Estate.-As a general rule, the sureties of an administrator or an executor are liable only to the extent of assets actually received by the principal; but where the assets consist, in whole or in part, of a debt due the estate from the principal, the law, from the necessity of the case, presumes that it has been paid, and therefore received by the executor or administrator, and his sureties are accountable for it: Seawell v. Buckley, 54 Ala. 592; Wright v. Lang, 66 Iu. 389. And this is held to be so in Lambrecht v. State, 57 Md. 240, whether the executor is able to pay or not. But in Piper's Estate, 15 Pa. St. 533, the liability is said to extend only to cases where the administrator is able to pay the debt. So in Spurlock

v. Earles, 8 Baxt. 437, it is held that the sureties are liable only in case the debt could have been collected with reasonable and proper diligence if it had been due from a third person. Where, upon a sale of property of the estate, the administrator himself becomes the purchaser, the fact that the purchase is ratified by the heirs does not relieve the sureties from liability for the purchase money if not accounted for: Todd v. Sparks, 10 La. Ann. 668.

6. Liability for Other Funds.-Damages collected by an administrator under a statute, for an injury causing the death of his intestate, are assets for which he and his sureties are liable on their bond: Goltra v. People, 53 Ill. 224; Glass v. Howell, 2 Lea, 50. Where an executor, with intent to defraud his creditors, inventories his own property as property of the estate, it is held that the sureties on his administration bond are accountable for the property: Wattles v. Hyde, 9 Conn. 10. Profits of investments of trust funds are also assets for which the sureties are liable: Watson v. Whitten, 3 Rich. 224.

7. Liability for Acts or Defaults as Trustee, Devisee, or Otherwise than Officially.It is settled, in some of the states, that the bond of an executor does not cover duties imposed upon him, not in his representative character, but as trustee under the will. Thus, it is held that the sureties are not liable for the executor's management of a fund set apart by the will for the support of the testator's widow: Warfield v. Brand's Ex'r, 13 Bush, 77; nor for a breach of duty as to property devised to him for the use of certain lega. tees in trust to sell and divide the proceeds: Perkins v. Lewis, 41 Ala. 649; or for the mismanagement of a business directed by the will to be carried on: Carter v. Young, 9 Lea, 210; nor for funds turned over to him as trustee for any other purpose: Barker v. Stanford, 53 Cal. 451; nor for breach of any duty imposed upon him in his character as a devisee under the will: Sims v. Lively, 14 B. Mon. 348. But in Tennessee, under the statute of 1838, sureties on an executor's bond are liable for his defaults as a trustee under the will: Lester v. Vick, 2 Heisk. 476; Porter v. Moores, 4 Id. 16. So, though the condition of the bond is not in the statutory form, if it calls for the performance of all duties "enjoined by the will:" Walker v. Potilla, 7 Lea, 449. So in Virginia, where property was devised to a wife for life, with directions to the executor to sell the same at her death and divide the proceeds among the testator's heirs, the sureties of the executor were held liable for his failure to pay over the proceeds upon a sale of the property: mond v. Mason's Adm'r, 9 Gratt. 700. So in United States v. Parker, 2 McArth. 444, where an executor was directed to invest a fund bequeathed for the benefit of the legatee. So where one of two executors was constituted a trustee under the will to invest funds and pay them over to the devisees as they came of age, and the executors having rendered an account, the balance in their hands was retained by the one who was trustee, but who gave no bond as such, and such trustee afterwards returned an account upon which a decree was passed for the payment of the shares as directed by the will, upon his failure to perform the decree, an action was held to lie on the bond of both executors: Newcomb v. Williams, 9 Met. 525. So, where an executor was directed by she will to carry on the testator's business for the benefit of the estate, his oureties were held liable for the proceeds of such business: Gandolfo v. Walker, 15 Ohio St. 251.

Where an administrator is appointed a commissioner, by an order of the court, to sell property belonging to the estate, and fails to pay over the proceeds, his sureties as administrator are not liable therefor: Reeves v. Steele, 2 Head, 647. Nor are the sureties of an executor liable for his intermeddling with property without right or authority under the will or the statute: Mc