Treweek v. Howard

Citations

• 105 Cal. 434
• 39 P. 20
• 1895 Cal. LEXIS 677

Syllabus

<p>Bond of Executor—Suretyship—Guaranty—Demand and Notice.— Whether the bond given by sureties for the faithful discharge of the duties of an executor is to be regarded as a contract of suretyship or a contract of guaranty, the sureties are not entitled, under the Civil Code, to insist upon a demand upon the executor and notice of his refusal to discharge his obligations as executor, but are liable for his default immediately thereupon without demand or notice.</p> <p>Id.—Pleading—Counts—Reference to Facts Stated in First Count.— In an action against the sureties upon the bond of an executor, who has failed to pay over the money distributed by order of the court to the legatees and distributees under the will, where the plaintiff sets out fully in the first count of the complaint all the facts relating to the administration, and the decree of distribution, and the nonpayment of the amount adjudged to be paid to the plaintiff, and in subsequent counts based on the assignment to the plaintiff of the demands of other distributees, instead of stating at length the several proceedings had during the course of administration up to the decree of distribution, refers to certain subdivisions of the first count, and states that the plaintiff repeats and alleges all of the matters and things set forth and alleged in such subdivisions, and prays that the same be taken and deemed a part of the cause of action as though therein set out at length, such reference is sufficient, and it is unnecessary to repeat at length such facts in each of the succeeding counts of the complaint.</p> <p>Id.—Defense—Fault of Executor.—It is not a defense available to the sureties upon the bond of an executor that the executor never received in fact any moneys belonging to the estate of the decedent, and that he, as agent of the decedent, during his lifetime, received, appropriated, and embezzled the moneys which he returned in the inventory as being in Ms hands, whereas he was then in fact insolvent