#### *Mitchell’s Adm’r v. Trotter & Wife.

October Term, 1850,

Richmond.

(Absent BKOOKE, J.)

Executors and Administrators—Collection of Assets— Liability.*—An administrator or executor is not *60hound to sue for the recovery of a debt due the estate, where it is apparent the debtor is not able to pay it.

This was a suit in equity in the Circuit court of Brunswick county, by Thomas R. Trotter and wife against Benjamin Wilkinson, administrator of Clement Mitchell deceased, the father of the female plaintiff, for a settlement of his administration account, and for a decree for the amount which might be ascertained to be due to the plaintiff. The accounts were referred to a commissioner, who reported thereon; and there was a single question of controversy between the parties. The commissioner disallowed a credit for the sum of 263 dollars, paid by the administrator in 1834 on a judgment recovered against him upon a bond executed by his intestate as the surety of Robinson Ezell, on the ground that the administrator might have recovered the money from Ezell, and had failed to bring suit against him. The evidence on the subject was returned by the commissioner with his report.

The Court below seems to have concurred with the commissioner in his view of the evidence, but was of opinion that it was proper to credit the administrator with the amount paid at the time of payment, and to charge him with it at the end of the account for his neglect to collect it. This correction in the account was made, and the Court, in April 1843, made a decree against the administrator for the amount ascertained to be due by the corrected statement. And from this decree ^Wilkinson applied to this Court for an appeal, which was allowed.

The evidence in the cause was conflicting ; but this Court-differed in opinion with the commissioner and the Court below, upon the question of Ezell’s ability to pay.

Gholson and Jones, for the appellant, and Gholson, for the appellees, submitted . the case.

*

Executors and Administrators—Liability. -An administrator is not bound to sue for a debt due the estate, when it is apparent that the debtor is unable to pay. Lovett v. Thomas, 81 Va. 345, citing the principal case. See also, citing1 and approving1 the principal case, Anderson v. Piercy, 20 W. Va. 327; *fo,ot-note*to Tanner v. Bennett, 33Gratt.252. See generally, monographic *note*on “Executors and Administrators.”

ALEEN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the evidence in the record does not establish such a degree of negligence on the part of the appellant, as to subject him to a personal responsibility for his failure to institute legal proceedings against Robinson EJzell for the debt he, as administrator, had been compelled to pay on account of his intestate having been surety for said Ezell; that on the contrarj’, the testimony shews that Ezell was unable to pay- the- debt, and that with a knowledge of the facts established by the evidence, the administrator was not required, in the prudent discharge of his duty, to incur the costs of a suit against Ezell. And as the commissioner, by his special report of the payment and all the testimony bearing on it, submitted the question directly to the Court, whether the claim was properly disallowed, the Court, instead of a partial correction of the report in relation to said claim, should have allowed the administrator credit for the amount thereof.

The Court is therefore of opinion that said decree is erroneous; and the same is reversed with costs; and the cause is remanded, with instructions to recommit the report to a commissioner, to have the same corrected in the particular above mentioned, and for a final decree.