or (in the case of a grant from the district registry) the district registrar shall require, with one or more surety or sureties, conditioned for duly collecting, getting in, and administering the personal estate of the deceased, which bond shall be in such form as the judge shall from time to time by any general or special order direct: provided that it shall not be necessary for a Solicitor for the Affairs of the Treasury or the Solicitor of the Duchy of Lancaster applying for or obtaining administration to the use or benefit of her Majesty to give any such bond as aforesaid." By § 82 of said Act, "such bond shall be in a penalty of double the amount under which the estate and effects of the deceased shall be sworn, unless the Court or district registrar, as the case may be, shall in any case think fit to direct the same to be reduced, in which case it shall be lawful for the Court or district registrar so to do, and the Court or district registrar may also direct that more bonds than one shall be given, so as to limit the liability of any surety to such amount as the Court or district registrar shall think reasonable." By § 73 of the above Act a bond is required of the one granted letters of administration with the will annexed where no executor is named in the will or the one named is unwilling to or incapable of acting. By § 83 of said Act, the court may, on motion or petition, where the condition of the bond has been broken, order the assignment of the bond to one designated in the order who thereupon becomes entitled to sue in his own name and recover on said bond as trustee, for all persons interested, the full amount recoverable because of the breach of condition.

III Com. on Wills-16

§ 1349. General Rules as to Bonds of Administrators.

39

Under the English practice sureties may be dispensed with and the bond of the administrator alone accepted where all the property of the estate has been paid into the court of chancery to be administered by that court," or the administrator is the trustee in bankruptcy of the decedent or the official receiver in bankruptcy,40 likewise where there are no debts and the one applying for administration is entitled to receive all of the decedent's estate.11 The security need not be contained in one bond, but may be made up of a number of bonds.42

43

In the United States, it is a universal requirement that an administrator must give a bond conditioned upon the faithful performance of his duties according to law. This matter is uniformly covered by state. Such bonds are required to secure a due administration of the estate and a proper distribution of the residue, after the collection of assets and payment of debts, among those entitled thereto. They are for the protection and benefit of creditors and distributees, in order to compel the administrator to properly administer the estate or be held liable on his bond for a failure to lawfully execute his trust.** The requirement of a bond applies to all administrators, whether general or limited, or whether with the will annexed although the will provides that the executor named therein be not required to give security. Such a

39 In re Stelfox, 70 L. T. 814; In re Leach, 80 L. T. 170.

40 In re Thacker, (1900) P. 15; In re Causton, (1906) P. 124.

41 In re Paton, (1901) P. 188; In re Harper, (1909) P. 88.

42 In re Earle, L. R. 10 Pro. Div.

196; In re McGowan, L R. 10 Pro. Div. 197.

43 Appeal of Picquet, 5 Pick. (Mass.) 65, 72.

44 Vroom v. Smith's Exrs., 14 N. J. L. 479; Ordinary v. Cooley, 30 N. J. L. 271.

provision by the testator is personal in its nature and applies only to the executor named.45

By statute in some jurisdictions where administration of an estate is granted to the public administrator in his official capacity, his official oath and bond stand in lieu of the administrator's oath and bond. The court, however, has the inherent power to require a bond of a public administrator and may do so if the circumstances warrant, and in such amount as will protect those interested in the estate.46

§1350. English Rule That Bond Is Required of Executor Only in Special Cases.

There is a distinction between executors and administrators as to the requiring of bonds. Under the early practice in England, the ecclesiastical courts which were charged with the settlement of estates of decedents, exerted very little authority over the executor. He was considered as deriving his authority from the will of the testator and not from the grant of the ordinary. A bond was not required of an executor although he was insolvent. The executor was considered the trustee for the decedent and if the testator deemed it proper to appoint him to the office, the court was not authorized to add other qualifications. Courts of chancery, however, in

45 Sneer v. Stutz, 102 Iowa 462, 71 N. W. 415.

46 Healy v. Superior Court, 127 Cal. 659, 60 Pac. 428.

"The public administrator is required to give a bond and take the official oath; it would seem to have been the intention of the statute to dispense with the bond and oath required of other admin

istrators in each particular case." -Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237.

47 Woerner, Amer. L. of Adm., §§ 250, 251; Ames v. Armstrong, 106 Mass. 15; Municipal Court v. Whaley, 25 R. I. 289, 105 Am. St. Rep. 890, 63 L. R. A. 235, 55 Atl. 750.

order to protect widows and children, were compelled to assume a new jurisdiction, and it became the rule of the chancery court to require an insolvent executor to give an undertaking for the faithful execution of his trust, the executor being considered in equity as a bare trustee. The English rule is that bonds of an executor are not required except where such special circumstances render them necessary.18

§ 1351. Effect of Direction in Will That Executor Serve Without Bonds,

In the United States there is no general rule, the English rule being followed in some jurisdictions;49 in others the executor named in a will must, prior to the issuance of letters testamentary, give a sufficient bond unless the will directs that no bonds shall be required.50

48 Duncumban v. Stint, 1 Ch. Cas. 121; s. c., 1 Eq. Cas. Abr. 238, pl. 21; Batten v. Earnley, 2 P. Wms. 163; Rous v. Noble, 2 Vern. 249.

Where the residue of the personal estate was charged with the payment of an annuity to the testator's widow for her mother's life, intended to be paid quarterly, and the estate consisted of bonds or securities, the executors, although not charged with misconduct, were ordered to bring before the master a sufficient part of the estate to preserve the annuity.Slanning v. Style, 3 P. Wms. 334.

The court of chancery may restrain an insolvent executor and appoint a receiver to bring actions in the name of the executor for

the recovery of the testator's ef fects; likewise it may restrain assignees of a bankrupt executor from paying over the fund to him. -Utterson v. Mair, 4 Bro. C. C. 270.

49 Chretien V. Bienvenu, 41 La. Ann. 728, 6 So. 553; Bird v. Wiggins, 35 N. J. Eq. 111; Colegrove v. Horton, 11 Paige (N. Y.) 261, 263; Matter of Lowery's Estate, 19 Misc. Rep. (N. Y.) 83, 43 N. Y. Supp. 972; Wilkins v. Harris, 60 N. C. 592.

50 Allen v. Draper, 98 Ala. 590, 13 So. 529; Flanders v. Locke, 53 Cal. 20; Willson v. Whitfield, 38 Ga. 269; Burlington Protestant Hospital Assn. v. Gerlinger, 111 Iowa 293, 82 N. W. 765; McGuire v. Gallagher, 99 Me. 334, 59 Atl.

The law, however, may require that an executor must give a bond even though the will relieves him of that burden.51 Although the statutes may not demand a bond in those instances where the testator directs the appointment of his executor without requiring him to give security, a bond may be demanded if necessary to protect the estate and interested parties irrespective of the testator's directions. Thus, where the effect of the management of the estate by the executor is to destroy the security of a creditor, it is proper for the court to order the executor to give a bond;52 and the rights of a legatee are entitled to as much protection as those of a creditor.58 Such statutes allowing an executor to qualify without giving a bond if the will so directs, extend the privilege only to the one designated in the will who, by reason of being named therein as executor, is the recipient of a personal trust and confidence. If the one named in the will as executor is either unwilling or unable to act, the privilege of appointment without the giving of security can not be claimed by the administrator with the will annexed.54 In some jurisdictions where the statutes provide that 445; Ames V. Armstrong, 106 Mass. 15; Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229; Hammond v. Wood, 15 R. I. 566, 10 Atl. 623; Fairfax v. Fairfax's Exr., 7 Gratt. (Va.) 36; Evans V. Foster, 80 Wis. 509, 14 L. R. A. 117, 50 N. W. 410.

25 So. 692; Duggan v. Lamar, 106 Ga. 855, 33 S. E. 43.

Even though the order requiring a bond in this case was made on motion of a creditor, it is of no consequence in determining the power or authority of the court.— Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229.

53 Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229. 54 Sneer v. Stutz, 102 Iowa 462, 71 N. W. 415; Small v. Commonwealth, 8 Pa. St. 101; Ex parte Brown, 2 Bradf. (N. Y.) 22.