#### WILEY WARD *vs.*OWEN HUGGINS, Adm’or &c.

An administrator *de bonis non*of a testator or an intestate, is á nécessa-ry party to a bill, calling upon the administrator of the deceased ex eeutor or original administrator of such testator or intestate, for an account of the administration.

The case of *Goode*v *Goode,*N. C. Term. Rep. 255, cited and approved.

This was a bill filed in Onslow Court of Equity, at Fall Term, 1839, by the plaintiff against the defendant as the administrator of Charles Thompson, who was the administrator of Elizabeth Ward, claiming that the plaintiff was one of the distributees of Elizabeth Ward- — that the said Charles Thompson owed him as administrator of the said Elizabeth, on a settlement of his administration accounts, at least $500 — that the said Charles had bought his note a' mounting to about $100= — and that the defendant, as administrator of the said Charles,, had brought suit on the said note — and praying for an injunction against the said suit— and also for an account of the estate of the said Elizabeth. Ward. To this bill the defendant demurred, because no administrator *de bo?iis non*of Elizabeth Ward-was a party to the suit. At Spring Term, 1842, his Honor Judge Battle presiding, the demurrer was overruled and the defendant ordered to answer; from which interlocutory decree the defendant, by permission of his Honor, appealed to the Supreme Court.

No counsel for the plaintiff in this court.

*John H. Bryan*and *J. W. Bryan*for the defendant.

Daniel, J.

The bill states that Elizabeth Ward died in the year 1836 — that Charles Thompson became her admin- *136— that Thompson purchased anote, which had been g'iven the plaintiff, for the sum of $100. Thompson died in the year 1838, without making a settlement with the next 0f kjn 0f k¡s jntestate — the plaintiff being one of them. The bill then charges, that there was $500 residue of the estate of Elizabeth Ward, in the hands of Thompson at his death; that the defendant, as administrator of Thompson, has obtained judgment on the said note of $100, and has issued execution on it. The plaintiff alleges in his bill, that he, as one of the next of kin of Elizabeth Word, is entitled to at least $100 out of the said assets, which are now in the hands of the defendant, as the administrator of Thompson, who was the administrator of Elizabeth Ward. The bill prays for an injunction; and also for an account of the estate of Elizabeth Ward. The defendant demurred to the bill; and for cause of demurrer, says that he, as administrator of Thompson, is not compelled to account to any person but the administrator *de bonis non*of Elizabeth Ward. The Judge overruled the demurrer; but consented to an appeal on that point to the Supreme Court.

In *Goode*v Goode, (N. C. Term Reports, 255,) it was decided, that an account of the personal estate, would not be decreed in favor of the next of kin of an intestate, without making the administrator a party to the bill. This decision has uniformly been followed in this State. The administrator *de bonis non*of Elizabeth Ward is not a party to this bill. The judgment overruling the demurrer must therefore be reversed with costs in this court. Whether the Superior Court will continue the cause, to enable the plaintiff to obtain administration and then amend his bill, may be a question for its consideration, when the cause shall be there again called.

Per Curiam, Ordered that this opinion be certified to the court below.