#### JANE WILSON, ADM'X, &C. vs. S. DOSTER AND AL.

An administrator may sell or pledge the effects, or discount a note belonging to the estate, and the party who deals with him Will get a good title, 'provided he deal honestly; for the legal title is in the administrator, and the purposes of the estate may require the representative thus to dispose of ' parts of it.

But, when a person gets from an administrator Or other person; acting in a fidu* eiary character, the trust fund, or a part of it, as payment of the trustee’s own debt, that person cannot hold the fund from the *cestui que trust,*any more than the original trustee could ; for it is a clear fraud, in violation of the obligations of the trust in one of the parties, and a concurrence in the fraud by the otiier, and botli are equally liable.

The next of kin could recover the assets so disposed of, and the surety of the administrator, who has paid the claim of the next of kin, on account of the administration becoming insolvent, and having committed the devastavit, will be entitled to the same relief they could have had.

The cases of *Gannon*v Jenkins, 1 Ire. Eq. 422, *Terrill*v *Morris,*1 Dev. & Bat. Eq. 559, *Gray*v *Armistead,*6 Ire. Eq. 74, *Bunting*v *Ricks,*2 Dev, dr Bat, 130, and *Exum*v *Bowden,*4 Ire. Eq. 281, cited and approved.

Appeal from the Court of Equity of Union county, Spring Term, 1851, his Honor Judge Battle presiding.

Upon the pleadings, and by the written admissions of the parties, the case is as follows : Moses Starnes died intestate in Union county, and Alexander W. Richasdson, one of the defendants, administered on his estate, and. in May, 1843 sold it, and toot bonds for the amount of sales, payable to. himself, as the administrator of the intestate Starnes, on- the 22d day of May, 1844. Among the bonds was one given by James McKorkle for $411 50, and, before the same fell due, Richardson endorsed it to the defendant Dos-ier, who received the money at maturity. William Wilson, and the defendant, Elias Preslaw, were the sureties of Richardson in his administration bond; and, he having wasted the estate of the intestate, and become insolvent, the next *232of lan instituted an action on the administration bond against 'the obligors, and recovered therein for the *devastavit,*$741,-36, besides the costs of süit; and the plaintiff has been 'Obliged to pay the same, and, being unable to recover anyipart thereof from Richardson, by reason of his insol v-“ency, she brought this suit in September, 1850. The bill charges, that Richardson was much embarrassed by debts, when he administered, and became more involved until his utter insolvency; and that among the debts he Owed, was -one to the defendant Doster, who became alarmed at the prospect of losing it, and pressed Richardson for payments who was unable to make payment by his own means; and, in order to satisfy the defendant Doster, as far as he could, he agreed to let him have the bond of McKorkle, so belonging to the estate of the intestate, and payable to Richardson, as administrator; 'and Doster ag'reed to accept the same in payment and satisfaction of the debt from Richardson, and upon that agreement, Richardson indorsed the bond to Doster, and delivered it to him. The bill futther states, that Starnes died, and the other parties all lived in the same neighborhood, and that Doster was well informed that Starnes was very little in debt at his death, and that Richai'dson had converted the assets to his own use, and was, in fact, insolvent at the -time he passed McKorkle’s bond to him. The bill prays, amongst other things, that Doster may be decreed to pay to the plaintiff the sum received by him upon McKorkle’s bond, with interest there-on, in part satisfaction of the sum paid by the plaintiff on the judgment recovered by the next of kin of Starnes.

The defendants Richardson and Preston did not answer, and the bill was taken *pro confesso*against them. The other defendant, Doster, put in an answer, which denies that Richardson owed him any debt on his own account, or that he took McKorkle’s bond from him in satisfaction of any such indebtedness. The answer states, that the manner in which he came by the bond was as follows: *233Richardson, in • 1843,. applied to this defendant for the loan of $200., saying that some oí the next of kin of Starnes wanted some part of their distributive shares, and that the purpose of the loan was to pay them as much as he could ; and he offered, to. deposit with, him, Doster, McKorkle’s bond for $411 50, as security therefor; and that he agreed to the proposition, and then, advanced Richardson, the sum of $200., and. received McK'orkle’s bond.; and afterwards; collected the.sum due on it, and paid the samo to.Richai'd-son, retaining to his own use the sum oí $200. only, with lawful- interest thereon for the time. The answer denies that the defendant knew, or believed, that Richardson had wasted the assets.of his intestate, or was in failing circumstances ; and it states, that Richardson was. the sheriff of the county,, and was believed, by this defendant to be an honest, industrious and thriving man, and, that he made the advance with the intent to.enable him to administer the estate the better, and fox the accommodation of the next of kin, who were pressing for their ’distributive shares, as he then supposed. The parties took proofs, and-the cause has been sent here for hearing..

*Avery*and *Wilson*for the plaintiff

*Osbovne*and Hutchinson, for the defendant,

Rupfin, C. J.,

The answer for the defendant Doster-makes a clear case for him, if sustained as.-true; for, there is no. doubt that an administrator may sell or pledge the as», sets, or discount a note belonging to the estate, and that the-party who deals with him will get a good title, provided he deals honestly; for the legal title is in the administrator, and the purposes of the estate may require lire representative thus to dispose of parts of it. *Cannon*v *Jenkins, 1*Iredell’s Eq. 422, *Terrell*v *Morris,*1 Dev. & Bat. Eq. 559. The subject was fully discussed in a recent case of *Gray*v *Armistead,*6 Ire. Eq.; and there needs no more to be said *234on it now. But the Court is obliged to admit, that the answer is not supported by the evidence. On the contrary, notwithstanding the clear and explicit statement in the answer, the proofs, both direct and circumstantial, contradict it very clearly, and - establish the truth to be, as charged in the bill, that Richardson was previously indebted to Doster on his own account, and was unable to pay him with effects of his own, and that Doster, in order to save his debt, took '.McKorkle’s bond in satisfaction of it — seeing on the face of the bond; indeed, knowing, as admitted in the answer, that it was part of Starnes’ assets. It is settled law, that when a person gets from an administrator, or other person, acting in a fiduciary capacity, the trust fund, or any part of it, as payment of the triisteee’s own debt, that person caiinot hold the fund from the *cestui que trust,*any more than the original trustee could; for, it is a clear fraud, in violation of the obligations of the trust, in one of the parties, and a concurrence in the fraud by the other; and both are equally liable. *Bunting v Ricks,*2 Dev. & Bat. 130, *Exum*v *Bowden,*4 Ire. Eq. 281. The next of kin of Starnes could, therefore, have recovered this money from the defendant Doster; and the same cases show, that the plaintiff who, as surety for the administrator, has paid them, is entitled to a decree-against him for it at once, since the defendant Doster now admits the insolvency of Richardson, and his *devastavit,*and declines asking any enquiry on those points..

Per Curiam, Decree for the plaintiff.