ERROR to the Supreme Court of the Territory of New Mexico; the case being thus:
One Hinckley died at Santa F e, in the Territory of New Mexico, in October, 1866. At the time of his death he was a member of a mercantile copartnership, consisting of himself and two persons named Blake and Wardwell, and they carried on business at Fort Craig and other places in the Territory of New Mexico.
In November, 1866, one Beall was appointed 'administrator and executor of the estate of Hinckley, according to the last will of the deceased,' and upon such appointment gave a bond with himself as principal and one Staab and others as sureties, conditioned in the ordinary form:
'To account for, pay, and turn over all the moneys and property of the said estate to the legal heirs of the said deceased, and to execute the last testamentary will of the said deceased, and to do all other things relative to the said administration as required by law, or by the order of the Probate Court of the county of Santa F e, or any other court having jurisdiction in the matter.'
In pursuance of his appointment, Beall filed in the probate court an inventory of the assets of the estate, in which, among other things, he said:
'The property, rights, and credits of the said deceased, so far as the undersigned, executor, has been able to obtain a knowledge thereof, were, at the time of his decease, as follows:
'The firm or partnership of which the deceased was a member with Blake and Wardwell, were owing the said deceased the sum of $46,538.60. The undersigned being satisfied that th sum stated is correct, has agreed to receive of the said Blake and Wardwell, in full discharge of the capital and profits of the said deceased, the aforesaid sum. The said Blake and Wardwell have agreed to pay the said sum as soon as they can arrange their affairs to do so, and within a reasonable time. The undersigned is satisfied that the said arrangement is the best he could make for the interest of the estate, and that the payment will be made in due time.'
He subsequently ($5000 of the sum having in the meantime been paid), rendered an account to the court of probate, in which he charged himself with a balance due from Wardwell and Blake, in this manner:
'April 30th, 1868, to amount due from Wardwell and Blake, $41,556.25.'
In January, 1869, Beall, who was an officer of the army and expected to be ordered away from New Mexico, resigned his office of administrator, leaving the amount due from Blake and Wardwell unpaid: and in October, 1869, one Griffin was appointed administrator de bonis non to succeed him. Directly after this, that is to say, in November, 1869, a suit by the Territory of New Mexico, on the relation of this Griffin, was brought in the District Court for the county of Santa F e, against Beall as principal and Staab and the others, his sureties, upon the administration bond which he and they had given on his appointment.
The breaches of the bond assigned in the declaration were, in substance, that Hinckley's interest in the copartnership referred to, at the time of his death, was worth $60,000; that the effects of the firm consisted of merchandise, real estate, mines, and credits; and that Beall unlawfully and by verbal agreement disposed of the same for $46,500 to Wardwell and Blake, the surviving partners, thereby allowing the interest of the deceased to remain in their possession, and by them (and Beall) to be converted to their own use, and that he neglected to pay over and account for the same; also, generally, that through his want of attention and neglect assets of the estate to the amount of $60,000 were wholly lost, wasted, and dissipated.
The case having come on to be tried before a jury, Griffin, the administrator de bonis non, was examined as a witness for his own side of the case. He said:
On examination in chief--
'I had frequent conversations with Beall. I asked him why he had not taken some security; I told him I thought it was not safe; asked him if he had any note for the amount; he said he had not; all he had was in the inventory; when he sold the property, he supposed they would pay for it. After my appointment Beall delivered to me a paper [produced], purporting to be an abstract from the books of Hinckley, Blake, and Wardwell, showing the condition of the account of Hinckley with the firm, and said it was a true statement.'
[The paper, which was a debit and credit account containing many items on both sides and ending in a balance of $46,538.60, was read to the jury.]
On cross-examination, the witness, being asked by the defendant's counsel if Beall had ever told him that he had sold Hinckley's interest to Blake and Wardwell, answered:
'I don't recollect that he ever told me so; I inferred so from Beall's conversations, who treated it as a sale.'
The judge charged the jury as follows:
'On the part of the plaintiff it is contended that Beall, as administrator of Hinckley, deceased, sold the interest of Hinckley's estate in the property and effects of Hinckley, Blake, and Wardwell to Blake and Wardwell, the surviving partners of the firm, for the sum of $46,538.60, on credit, without taking any security for the same. In the opinion of the court, the statements of the inventory filed by Beall in the probate court, which are evidence in the cause, and the evidence of Elkins, establishes the fact of such sale. By selling this property on credit, Beall becomes personally liable in law to the estate for the amount for which the property was sold; and if the jury, from the evidence, arrive at the same conclusion with the court, they should find for the plaintiff, and assess his damages at $41,556, with interest at 6 per cent., such interest to commence six months after the inventory was filed, January 10th, 1867.'
Under this charge the jury rendered a verdict in favor of the plaintiff, and assessed the damages at $48,000, upon which verdict judgment was entered. An appeal was taken to the Supreme Court of the Territory. An appeal bond was given, conditioned that the appellants should perform the judgment of the court, and pay the damages and costs that might be adjudged against them upon their said appeal.
There is a provision in the Revised Statutes of New Mexico  which reads as follows:
'In case of appeal in civil suits, if the judgment by the appellate court be against the appellant, it shall be rendered against him and his securities on the appeal bond.'
The 7th section of the organic act of the Territory,  provides—
'That the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act. . . . All the laws passed by the Legislative Assembly and governor shall be submitted to the Congress of the United States, and if disapproved shall be null and of no effect.'
There was no evidence that this law had ever been disapproved.
In pursuance of it, when the judgment was affirmed by the Supreme Court of the Territory, judgment was rendered against the appellants and the sureties upon the appeal bond.
The latter judgment was brought to this court by writ of error; the court being called upon to review as well certain errors which were alleged to affect the action itself, as others which were assigned upon a bill of exceptions taken at the trial of the cause.
The errors assigned were—
1st. That judgment was entered by the Supreme Court against the sureties of the appeal bond as well as against the appellants below.
2d. That an administrator de bonis non cannot maintain suit on the original administrator's bond.
3d. Other objections, as that the late administrator, Beall, had not been called to account in the probate court, and no decree had been passed against him, and that no order of the probate court was obtained for leave to prosecute the bond.
Mr. W. M. Evarts, for the plaintiff in error; Messrs. W. W. McFarland and L. P. Poland, contra.
Mr. Justice BRADLEY delivered the opinion of the court.
- Section 5, page 290.
- Brightly's Digest, p. 694.