#### *Almond & Wife v. Mason's Adm’r & als.

January Term, 1853,

Richmond.

(Absent Lee, J.)

Executors and Administrators — Sale of Realty — Failure to'Pay Over Proceeds — Liability of Sureties.* — Testator by his will gives certain property to his wife during her life; and directs that at her death, his executors should sell it and divide the proceeds among his children. The executor does after the death of the widow, take possession of the property and sell it, but does not pay over the proceeds. .Held: His official sureties are responsible for his failure to pay it over.

This was a suit instituted in thé Circuit court of Rappahannock county by Mrs. Almond before her marriage with her present husband, against Daniel Mason, as administrator de bonis non with the will annexed of William Porter deceased, arid as administrator of Sarah Porter, .the father and mother of the plaintiff, for an account and distribution of both estates. The sureties of Mason in both characters, and the legatees and distributees of both were made parties, and it was alleged that Mason was insolvent, of which there does not seem to have been any question.

William Porter died in 1815; and by his *353will, among other provisions, gave a part of his property, real and personal, to his wife during her life or widowhood. And he directed, that if she should not marry during her natural life, at her death his executors should proceed to sell the whole of his estate and divide the money as above directed. The previous directions as to his other estate was that it should be equalty divided among bis children.

Of the executors appointed in the will one died, and the powers of the other were revoked in 1836, when *the unadministered estate was committed to Daniel Mason as administrator de bonis non with the will annexed. The bond he executed did not embrace land.

It appeared from the commissioner’s report that the only assets which came to the hands of Mason as representative of William Porter deceased, was the personal property which had gone into the possession of the widow under her husband’s will, and which, never having married again, she retained until her death in 1836.

The commissioner’s report ascertained that there was due to the plaintiff from Mason as administrator, &c., of William Porter the sum of 694 dollars 33 cents, and as administrator of Sarah Porter the sum of 106 dollars 89 cents, both sums as of the date of the 31st of December 1839; and at the same date the plaintiff was debtor to Mason on private account a sum which, deducted from the amount due from him as administrator, left him debtor as of that date 246 dollars 49 cents.

The plaintiff having intermarried with William R. Almond, the suit was carried on in their joint names; and Mason having died, it was revived against his administrator; and came on to be finally heard in September 184S, when the court dismissed the bill as to the sureties of Mason as administrator, &c., with the will annexed of William Porter, with costs, being of opinion that they were not liable for any waste of the assets which had gone into the possession of Mrs. Porter for her life under the will of her husband, after the same had been taken into the possession of the administrator, upon her death. And the court decreed that the administrator of Mason should, out of the assets of his intestate in his hands to be administered, pay to the plaintiffs the said sum of 246 dollars 49 cents, with interest thereon at the rate of six per cent, per annum from the 31st of December 1839 until paid, and their *costs. Prom this decree the plaintiffs applied to this court for an appeal, which was allowed.

Morson, for the appellants.

There was no counsel for the appellees.

*

Executors and Administrators — Sale of Realty — Failure to Pay Over Proceeds — Liability of Sureties. — See monographic *note*on “Executors and Administrators.” In addition, see principal case cited in Gibson v. Beckham, 16 Gratt. 333; Tabb v. Cabell, 17 Gratt. 175.

ALLEN, J.,

delivered the opinion of the court.

It appearing that the father of the female appellant by his last will and testament, duly executed and admitted to probat, did, amongst other things, bequeath certain personal property therein described to his wife during her natural life or widowhood; that two of the executors named in the will took upon themselves the execution of said office; that one of said executors departed this life, and the surviving executor was removed from his office, and administration de bonis non with the will annexed was committed to Daniel Mason, who executed bond with the security and qualified as such administrator according to law; and it furthermore appearing by the report of the master commissioner, made out in pursuance of the interlocutory decree, that the w'hole of the personal estate of William Porter, the said testator, which came to the hands of said administrator de bonis non with the will annexed, was property held and enjoyed during her life by Sarah Porter, the widow of said William Porter, in virtue of the bequest aforesaid; and it also appearing that the testator by his will after the bequest to his wife as aforesaid, furthermore declared that in case she should not marry during her natural life, it was his will and desire that at her decease his executors should proceed to sell the whole of his estate, and divide the money arising therefrom as in the will directed ; this court is of opinion that the assent of the executors to the legacy to the widow during her natural life or widowhood, and her enjoyment thereof under said bequest during her natural life, was not a full administration *of the personal estate in this case. The will made no disposition of the specific properly in favor of any third person after the death or marriage of the widow, but on the contrary required the executors at her decease to sell the property, describing it as part of his estate; thus making it the duty of the personal representative, in execution of the will, to take and sell the said personal estate when the life estate terminated, as part of the assets of the estate. The court is therefore of opinion that when after the death of the widow the administrator de bonis non with the will annexed took possession of and sold the personal property bequeathed to her during her natural life or widowhood, he was acting in virtue of his office and in performance of the duty imposed upon him by his office and the will of the testator; and that the sureties in his official bond were liable for his faithful administration thereof: It being the duty of the administrator to pay over the proceeds arising from the sale of such properly amongst the residuary legatees in the mode prescribed in the will; and by the condition of their bond, they bound themselves that he should pay and deliver all the legacies contained and specified in the will as far as the goods, chattels and credits would extend. The court is therefore of opinion that the said decree is erroneous. It is therefore adjudged and ordered that the same be reversed with costs. And this cause is remanded to be further pro-ceded in according to the principles above declared in order to a final decree.