§ 1355. When Appointment Is Void or Bond Voluntarily Given. The court having jurisdiction of the estate, although it may be conceded that the appointment of an administrator was extremely irregular and would have been set aside upon application of any party entitled to attack it, the acts of the appointee must be recognized as valid and are not nullified by the subsequent revocation of the appointment.70 An administrator can not relieve himself from his liability to account on the ground that his appointment was void,"1 and the sureties on his bond may be held liable even though the letters of administration issued were invalid."2 However, the bond of an executor or administrator should be construed with reference to the statute, under which it is given.78 Where the appointee voluntarily gave a bond in the spiritual court for the due performance of the duties of his office, although not required to do so, it was valid and binding. Even though the appointment of an administrator may be void for want of jurisdiction of the court in making the appointment, a bond given by such administrator has been held binding, not as a statutory but as a common law bond, it being upon a good consideration and not against the policy of the law.75 Even though an executor's bond may have been given under a mistake of 70 Succession of Robertson, 49 La. Ann. 80, 21 So. 197. 71 Appeal of Ela, 68 N. H. 35, 38 Atl. 501; Dobler v. Strobel, 9 N. D. 104, 81 Am. St. Rep. 530, 81 N. W. 37. 72 Foster v. Commonwealth, 35 Pa. St. 148, 150. 73 Soldini v. Hyams, 15 La. Ann. 551; Sikes v. Truitt, 57 N. C. 361; Hartzell v. Commonwealth, 42 Pa. 74 Folkes V. Docminique, 2 Strange 1137. 75 McChord y. Fisher's Heirs, 13 B. Mon. (Ky.) 193, 194; Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229. fact, it has been held valid where it was voluntarily given.76 § 1356. When and How Surety Becomes Liable upon Bond. The general rule is that the liability of a surety on the bond of an executor or administrator depends upon the liability of the principal and does not attach until such liability has been ascertained and determined." Such liability becomes fixed and determined upon the settlement of their principal's account. Although the sureties are not parties to such proceeding, the decree settling the account can not be collaterally attacked.78 While some authorities classify bonds of executors or administrators as in the nature of indemnity contracts, the better rule, supported by the weight of authority, is that the sureties voluntarily place themselves in privity with the executor or administrator and are therefore bound by any decree or judgment which the court having jurisdiction of the matter may render against the principal." 76 Brooks V. Whitmore, 142 Mass. 399, 8 N. E. 117. 77 Reither v. Murdock, 135 Cal. 197, 67 Pac. 784; Nickals v. Stanley, 146 Cal. 724, 81 Pac. 117. 78 Reither v. Murdock, 135 Cal. 197, 67 Pac. 784; Jenkins v. State, 76 Md. 255, 23 Atl. 608, 790; Kenck v. Parchen, 22 Mont. 519, 74 Am. St. Rep. 625, 57 Pac. 94; Joy v. Elton, 9 N. D. 428, 83 N. W. 875; Greer v. McNeal, 11 Okla. 526, 69 Pac. 893; Bellinger v. Thompson, 26 Ore. 320, 37 Pac. 714, 40 Pac. 229; Holden v. Curry, 85 Wis. 504, 55 N. W. 965. 79 Stoval v. Banks, 10 Wall. (U. S.) 583, 19 L. Ed. 1036; Pres ley v. Weakley, 135 Ala. 517, 93 Am. St. Rep. 39, 33 So. 434; American Bonding etc. Co. v. United States, 23 App. Cas. (D. C.) 535, 543; People v. Huffman, 182 Ill. 390, 55 N. E. 981; Carpenter v. United States Fidelity etc. Co., 123 Wis. 209, 101 N. W. 404; Frazer v. Frazer, 25 Ky. L. Rep. 473, 76 S. W. 13; Bassett v. Fidelity etc. Co., 184 Mass. 210, 100 Am. St. Rep. 552, 68 N. E. 205; State v. Kennedy, 163 Mo. 510, 63 S. W. 678; Joy v. Elton, 9 N. D. 428, 83 N. W. 875; McMahon v. Smith, 24 App. Div. 25, 49 N. Y. Supp. 93; Barney v. Babcock's Estate, 115 Wis. 409, 91 N. W. 982. The general rule is that no action may be maintained against the sureties on the bond of an executor or administrator until after the liability of such officer has been fixed by an accounting in the probate court.80 But if the principal dies or absconds so that his account can not be settled in the manner prescribed by law, an action at law or a suit in equity is necessary in order to fix the liability of the sureties.81 80 Cook v. Ceas, 143 Cal. 221, 225, 77 Pac. 65; Nickals v. Stanley, 146 Cal. 724, 81 Pac. 117; Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737; Adams v. Petrain, 11 Ore. 304, 3 Pac. 163. An action on the bond of an executor or administrator for alleged misconduct, or misappro priation of assets, will not lie until the remedies of the probate court have been exhausted; the probate court should first find such misconduct or misappropria tion to exist, and order restitution. Upon failure of the executor or administrator to comply with the order, suit may be instituted.Decker v. Decker, 3 Alaska 121, 123. The failure of an executor or administrator to account for money of the estate coming into his hands is a breach of his bond. McAllister v. People, 28 Colo. 156, 63 Pac. 308. 81 Reither v. Murdock, 135 Cal. 197, 201, 67 Pac. 784; Perkins v. Cheney, 114 Mich. 567, 568, 68 Am. St. Rep. 495, 72 N. W. 595. If an executor or administrator die, it is not necessary that his An administrator de bonis non may maintain an action against a former administrator who has been removed, as well as the sureties on his bond, to recover assets of the estate unadministered or converted, and also for other maladministrations or omissions. The fact that such administrator has rendered no final account does not deprive the court of jurisdiction to hear the action where the administrator has absconded and been removed from office and has failed to turn over the assets of the estate upon order of the probate court. Recovery may be had from the defaulting administrators and his sureties of the amount so misapplied and also the additional expense of administration made The refusal or neglect of an executor or administrator to comply with a final judgment of the probate court rendered against him constitutes a breach of his bond which provides that he "shall faithfully execute the duties of the trust according to law," and renders both himself and the sureties on his bond, to the extent of the penalty named in the bond, liable for the full amount of the judgment.82 It is, however, only the lawful orders of the court for which the sureties on the bond of an executor or administrator become liable, should the principal fail to obey them.83 If the court has no jurisdiction to make the order, it is void and neither the principal nor the sureties are bound.84 Unless the statute prescribes that application must first be made to the court and leave be obtained to sue on the bond of an executor or administrator, no such application is necessary before instituting suit.85 necessary by the default.-American Surety Co. v. Piatt, 67 Kan. 294, 72 Pac. 775. Where the executor dies without having filed his account or paid any debts, and the statute provides that the executor of an executor has no authority to administer the estate of the first testator, a settlement of the account of the first executor by his executor is not binding on the sureties on the bond of the first executor, but any defense which they may have may be litigated in the action brought against them on the bond.-Robbins v. Burridge, 128 Mich. 25, 87 N. W. 93. 82 Greer v. McNeal, 11 Okla. 526, 69 Pac. 893. 83 People v. Corlies, 1 Sandf. (N. Y.) 228, 238. 84 Howard v. Gosset, 10 Q. B. 359; Attorney-General V. Lord Hotham, 1 Turn. & R. 209, 219; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211; Gilliland V. Sellers' Admrs., 2 Ohio St. 223. 85 Bartels v. Gove, 4 Wash, 632, 30 Pac. 675. Leave to bring action on the bond of an administrator may be granted without notice to him or his sureties.-Fuller v. Cushman, 170 Mass. 286, 49 N. E. 631. Where the widow is appointed administratrix of her husband's estate, and is entitled to all of the personalty without administration because of its value being under a sum fixed by statute, or to the realty under the law relating to homestead exemptions, the sureties on the bond of the executrix are not liable in such cases if she fails to render an account.86 § 1357. When Surety Is Liable for Acts of Principal Prior to Bond. Where the bond of an executor or administrator does not specially in terms limit the liability to acts of such officer committed after the execution of the instrument, but is general in terms and is conditioned upon the faithful performance of the duties of the trust, the sureties upon the bond of such officer are liable for breaches of trust committed prior to the execution of the bond as well as those committed subsequent thereto. There are no terms of the office of an executor or administrator; it is continuous from the date of appointment until the close of administration. A surety on the bond of an executor or administrator is liable for all assets properly chargeable to him in his official capacity and it is not necessary to show that the property so chargeable was actually on hand, intact or in specie, at the time the bond was executed. If it be shown that the property came into the hands of the executor or administrator in his official capacity and he has not properly disposed of or accounted for it, he must do so in his final accounting, and the sureties on his bond are held liable for the faithful performance of such duty.87 86 Jackson v. Wilson, 117 Ala. 432, 23 So. 521. 87 Elizalde v. Murphy, 163 Cal. 681, 126 Pac. 978; Greer v. Mc |