1. A decree which adjudges a certain sum of money to be due from
an administrator to each of the distributees of his intestate's
estate and awards execution to collect it is a final decree. An
added direction that the defendant be allowed, as payment to each
of the distributees, the amount of any note held by him against
them, and also that the several shares of the parties to whom the
estate is awarded shall be subject to ratable deduction for fees
yet unpaid for the collection of notes belonging to the
administrator, does not make the decree less final, especially when
it does not appear that the administrator held any notes against
any of the distributees or that there were any unpaid fees.
2. Sureties in an administration bond are bound by a decree
against their administrator finding assets in his hands, and
nonpayment of them over, to the same extent to which the
administrator himself is bound. They cannot attack collaterally a
decree made against him on such a subject.
3. A decree of a court of competent jurisdiction awarding a sum
in the hands of an administrator to distributees cannot be attacked
collaterally.
Page 77 U. S. 584
This was an action of covenant upon an administration bond,
brought by the ordinary of Morgan County, Georgia, for the use of
persons claiming to be distributees of the estate of Alfred
Eubanks, deceased, against the administrator, who was the principal
obligor, and against his sureties in the bond. At the trial, the
plaintiff offered in evidence the record of a suit in chancery in
the Morgan County Superior Court in which the persons for whose use
this suit was brought were complainants and the administrator, with
others who also claimed to be heirs and distributees of the estate
of the decedent, were defendants. By that record it appeared that
the superior court adjudged the sum of $31,743.50, assets of the
decedent's estate, to be in the hands of the administrator and made
an order distributing the whole. In the distribution, $3,820 were
decreed to be paid to each of the complainants in the bill, and it
was ordered that they should have executions for the respective
sums adjudged to them on application to the clerk of the court
after four days from its adjournment. The record further exhibited
that executions were issued upon the decree, that no objection was
made to the issue, and that to all of the executions the sheriff
returned "No property of the defendant or of the estate of Alfred
Eubanks to be found upon which to levy."
In addition to this, however, the record showed that the court,
after having fixed the sum due to each complainant and ordered its
payment, and after having awarded execution, went on to direct that
the administrator should be allowed as payment to the respective
parties, to be deducted from the amounts therein adjudged to them,
the principal and interest of any note held by him against either
of them, and also
that the several shares of the parties to
whom the estate was awarded should be subjected to ratable
deduction for fees yet unpaid for the collection of notes belonging
to the administrator.
When this record was offered in evidence, the district court
rejected it, holding that the decree was not final, and
consequently that it could not be read in evidence for any
Page 77 U. S. 585
purpose in the case. This action of the court was now here for
review.
Page 77 U. S. 586
MR. JUSTICE STRONG delivered the opinion of the Court.
The court below rejected the record of the suit in chancery in
Morgan County Superior Court, holding that the decree was not
final, and consequently could not be given in evidence for any
purpose in the case. In this we think there was error. It cannot be
maintained that a decree which adjudges a certain sum of money to
be due from a defendant to the complainant and awards execution to
collect it is not a final decree conclusive upon the parties. We do
not overlook the fact that in this instance, the court, after
having determined the sum due to each of the complainants and
directed its payment and after having awarded execution, went on to
direct that the administrator be allowed as payment to the
respective parties, to be deducted from the amounts therein
adjudged to them, the principal and interest of any note held by
him against either of them. It also directed that the several
shares of the parties to whom the estate was awarded should be
subjected to ratable deduction for fees yet unpaid for the
collection of notes belonging to the administrator. But we think
the decree was not for this reason the less final.
Even if the sum decreed was left indeterminate, it was certainly
adjudicated that the complainants were entitled to participate in
the distribution, and the extent of their interest was defined. But
it does not appear that there were any unpaid fees or that the
administrator held any notes against either of the distributees.
All that these parts of the decree meant, therefore, was either
direction to the sheriff respecting the execution of the
fi.
fas. or liberty to the defendant
Page 77 U. S. 587
to move for a modification of the decree -- a motion never made.
Plainly they were not intended to prevent the enforcement of the
decree by executions against the administrator, for such executions
were expressly allowed. It is not unusual in courts of equity to
enter decrees determining the rights of parties and the extent of
the liability of one party to the other, giving at the same time a
right to apply to the court for modifications and directions. It
has never been doubted that such decrees are final. They are all
that is necessary to give to the successful party the full benefit
of the judgment. In Daniell's Chancery Practice, [
Footnote 1] the effect of allowing the
privilege of making such applications to the chancellor is stated
to be no alteration of the final nature of the decree. Says the
author,
"A decree with such a liberty reserved is still a final decree,
and, when signed and enrolled, may be pleaded in bar to another
suit for the same matter."
So, in
Mills v. Hoag, [
Footnote 2] it was said that "A decree is not the less
final in its nature because some future orders of the court may
possibly become necessary to carry such final decree into effect."
In the case before, us no future orders were necessary. The decree
was ripe for execution, and execution was ordered.
We are referred, however, to the
nisi prius case of
Sadler v. Robins, 1 Campbell's Nisi Prius Reports.
[
Footnote 3] Without dwelling
upon the fact that those Reports have not always been considered
safe authority, an examination of the case as reported will reveal
that it does not sustain the ruling of the district court. It was
an action of assumpsit on a decree of the High Court of Chancery in
Jamaica. The decree was for a certain sum, current money of the
island,
"first deducting thereout the full costs of the defendants
expended in the said suit, the same to be taxed by George Howell,
Esquire, one of the masters of the said court, and also deducting
all and every further payment or payments which the said James
Sadler and R. Haywood or either of them might, on or before the
first day of January, 1806, show to the satisfaction
Page 77 U. S. 588
of the said George Howell that they or either of them had paid
on account of their said testator's estate."
This decree Lord Ellenborough held to be incomplete, and ruled
that assumpsit would not lie upon it. But it must be observed that
there were certainly unascertained deductions to be made. Costs had
been expended by the defendants, and the plaintiff might have had
them taxed even if the defendants had not appeared to tax them. It
was for this reason the decree was adjudged not complete. There was
not, as in the present case, an award of execution to enforce the
decree, and there could not have been, for there was a reference to
a master to ascertain definitely its amount.
It has been argued on behalf of the defendants in error that the
decree of the superior court, if admitted, would have been only
prima facie evidence against the sureties in the bond.
Were that conceded, it would not justify the exclusion of the
evidence. But the concession cannot be made. The decree settled
that the administrator of the intestate, Alfred Eubanks, held in
his hands sums of money belonging to the equitable plaintiffs in
this suit as distributees of the intestate's estate, which he had
been ordered to pay over by a court of competent jurisdiction, and
the record established his failure to obey the order. Thereby a
breach of his administration bond was conclusively shown. Certainly
the administrator was concluded. And the sureties in the bond are
bound to the full extent to which their principal is bound. A
principal in a bond may be liable beyond the stipulations of the
instrument independently of them, but so far as his liability is in
consequence of the bond and by force of its terms, his surety is
bound with him. There may be special defenses for a surety arising
out of circumstances not existing in this case, but in their
absence, whatever concludes his principal as an obligor concludes
him. He cannot attack collaterally a decree made against an
administrator for whose fidelity to his trust he has bound
himself.
Much of the argument upon both sides of this case has been
devoted to the consideration of the inquiry whether the
Superior
Page 77 U. S. 589
Court of Morgan County and the Supreme Court of Georgia rightly
adjudged that the equitable plaintiffs are entitled to a share of
the estate of the decedent in the administrator's intestate. That
is no longer an open question. It was concluded by the decree
offered in evidence. It cannot be tried again in this case.
Judgment reversed and a new trial ordered.
[
Footnote 1]
Vol. 2, pp. 641, 642.
[
Footnote 2]
7 Paige 19.
[
Footnote 3]
Page 253.
