#### *Sturdivant’s Adm’r v. Raines’s Ex’or.

November, 1829.

Administators — When Verdict Insufficient to Found Judgment De Bonis Testatoris.* — Debt on bond against an aJm’r; issues joined on pleas of payment and fully administered; verdict for plaintiff on first issue, and on the last, “that assets more than sufficient to pay the debt &c. came to defendant’s hands to be administered: ” Held, verdict on last issue insufficient to found j udgrment de bonis testatoris.

Debt on bond, by the executor of Raines against the administrator of Sturdivant, in the circuit court of Prince George. Pleas, payment and fully administered; on which issues were made up. The jury found the following verdict: “We of the jury find for the plaintiff the debt in the declaration mentioned, to be discharged by the payment of ;£18. 16. 8. with interest from the 4th January 1806 till paid &c. And we further find that assets more than sufficient to pay the debt, interest and costs came to the hands of the defendant to be administered.” Whereupon the court gave judgment against the defendant, for the debt, interest and costs, to be levied de bonis testatoris. The defendant appealed to this court.

Allison, for the appellant,

objected, that the verdict of the jury was insufficient to sustain the judgment; because it did not find assets in the hands of the administrator, unadministered by him, sufficient to pay the debt; but onljr that assets enough came to his hands; which might be true, and yet the administrator might have fully and duly administered all the assets. He cited Booth’s ex’or v. Armstrong, 2 Wash. 301; Rogers’s adm’x v. Chandler’s adm’x, 3 Munf. 65; Eppes’s adm’rs v. Smith, adm’r of Bagley &c., 4 Munf. 466; Gardner’s adm’r v. Vidal, 6 Rand. 106.

The Attorney General, for the appellee.

*171In the cases cited for the appellant, the finding was assets equal to the debt, or assets sufficient to pay the debt: here the finding is that assets more than sufficient to pay the debt, came to the administrator’s hands; inferring, that, in law and in fact, *there were ample assets. Gardner v. Vidal goes a step beyond the other cases; for it is there held, that the jury must find assets sufficient at the time of the plea pleaded.

Allison. The case of Booth’s ex’or v. Armstrong, is decisive against the distinction now suggested, founded on the finding that more than sufficient assets to pay the debt came to the hands of the administrator.

*

Executors and Administrators — When Verdict Insufficient to Found Judgment De Bonis Testatoris. — In an action of debt on bond against an administratrix, the plea was fully administered, and the verdict was in general terms that the defendant had not fully administered; upon which verdict judgment was rendered for the debt demanded, to be levied *de bonis testatoris,*and it was held that such verdict was insufficient to warrant the judgment. Brizendine v. Tisdale, 5 Leigh (51) 54, citing as authority *Sturdivant v. Raines, 1 Leigh,*481; Gardner v. Vidal, 6 Rand. 106. To the same effect the principal case is cited in *foot-note*to Booth v. Armstrong. 2 Wash. 301; by Tucker, P., in Burnett v. Harwell, 3 Leigh 96. See also, Rogers v. Chandler, 3 Munf. 65: Eppes v. Smith, 4 Munf. 466. See monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

CARR, J.,

reviewed the cases cited at the bar, and then added — Without stopping to inquire whether this court went too far in Gardner v. Vidal, in requiring that the verdict should find the amount of assets, at the time of plea pleaded, it seems clear to me, from the whole tenour of these decisions, and the reason on which they stand, that the verdict before us must be pronounced insufficient. All the cases decide, substantially, I think, that it must appear from the verdict, that at the institution of the action, there were in the hands of the representative, assets not bound by superiour claims, sufficient to discharge the debt due the plaintiff; or if not sufficient, that the amount of such assets must be found. Here it is found, that assets more than enough to pay the debt came to the defendant’s hands: but whether he had them at the institution of this suit; whether before that he had not properly disbursed them; or whether, if he still held them, they were not bound by prior judgments &c. does not appear at all. There is, therefore, all that uncertainty and insufficiency, for which, in the other cases, the verdicts were set aside; and I think this must share the same fate.

The other judges concurred, and the judgment was reversed.