#### LUCE AND KENTON v. THE TREASURER, &c. FOR McDONALD.

Descent — personalty—chancery—balance due by administrator admitted by the demurrer — > court assessing damages — averment.

The personalty of an intestate does not go to the heir by descent; it goes to the administrator, though the heir is ultimately entitled to the proceeds as distributee; and chancery might direct the payment to the distributee, if the estate was settled — or, it may settle up and distribute a decedent’s estate.

In a suit upon an administration bond, if the declaration aver a settlement with the probate court and the balance found, a demurrer admits the balance so averred, and final judgment may be rendered without inquiry of damages.

*655The statute expressly authorizes the court on demurrer, to assess the damages without a jury. If the declaration aver the balance found by the probate court as due from the estate of the first

administrator, to the estate of his intestate, yet the second administrator may recover.

Error to the Common Pleas. The treasurer of Champaign for the use of McDonald, administrator de bonis non of Pearce, sued Luce and Kenton, on a bond executed by them as security for Fithian, administrator of Pearce. The declaration, after describing the bond, avers that Fithian, the administrator, removed to Illinois— having commenced a settlement with the probate court here, and died before it was completed. That the settlement was afterwards' completed by his administrator, and a balance found by the court to be due of $1432 30 — that McDonald has been duly appointed administrator de bonis non, and demanded the money, but it wholly remains unpaid, whereby an action has accrued, etc. To this there was a general demurrer, which the court below overruled, and gave judgment for the penalty of the bond, to be satisfied by paying the balance, the sum due in equity and costs.

The following points are made for the plaintiff in error:

1. That the right of action for the balance is in the widow and heirs as distributees, and not in the administrator.

2. That the court assessed the damages without a jury.

3. The suit should first have been brought and the damages liquidated against the administrator.

4. That the record avers the balance due from the estate of Fithian to the estate of Pearce, ajid also to the administrator de bonis non.

*Mason,*for the plaintiff in error.

*Hamilton,*contra.

Wright, J.

There is no error in this record.

1. The personalty of an intestate estate does not *go to the heir by descent.*It goes to the administrator, the representative of the personalty. If the estate were finally settled, chancery might direct the payment in the first instance to the heir, as the party ultimately-entitled, or settle and distribute the estate, but if there be, as in this case, an administrator, the choses in action are in him: (6 *Mass. R.*391.)

2. There, were no damages to assess, the demurrer admitted the amount as found by the court of probate, but if it were not so, the court on demurrer is expressly authorized to assess damages.

3. The balance due the estate had been liquidated by the probate court, but if not, and the administrator had removed out of thé jurisdiction, as is admitted here, a party may sue the bond, without *656following the principal debtor into another jurisdiction: (3 *O. R.*225.)

4. The fourth objection is of immaterial matter — there is sufficient to sustain the judgment, and we affirm it.