American Surety Co. v. Piatt

Citations

• 67 Kan. 294
• 72 P. 775
• 1903 Kan. LEXIS 250

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Executors and Administrators — Action by Administrator de. Bonis Non against Former Administrator and Sureties. Under section 26 of the act in relation to executors and administrators, an administrator de bonis non may’maintain an action against a former administrator who has been removed, as well as his sureties on the administration bond, to recover the personal effects and assets of the estate unadministered, including the proceeds derived from a sale of the assets of the estate and converted by the former administrator, and also for his other maladministration or omissions.</p> <p>2. •-Benefit .of All Parties Interested. Such a proceeding is prosecuted for the benefit of creditors of the estate whose claims have been allowed and not paid upon demand, and all others interested in a faithful administration of the estate.</p> <p>3. -Final Accounting Not a Condition Precedent. The ■ fact that no final accounting has been had with such administrator in the probate court does not deprive the district court of j urisdiction to hear and determine such action, where the administrator has absconded from the state and been removed from office, and has failed to turn over the assets <of the estate upon order of the probate court.</p> <p>i. - When Assets are Administered — Recovery of Funds Misapplied. The assets of an estate are not regarded as administered until they have been collected and applied as required by law and the will of the testator; and when moneys of an estate have been misapplied or wrongfully paid out, the administrator de bonis non may recover from the defaulting administrator and his ^úreties the amount so misapplied, and also for the additional expense of administration made necessary by the default.</p> <p>5. - Conclusiveness of Judgment Waived. The question whether a judgment of a creditor of the estate against the administrator de bonis non is conclusive against the sureties becomes immaterial where such judgment w