#### THE GOVERNOR TO THE USE OF WM. J McELROY & WIFE RACHEL *vs.*A. G. CARTER, AMINISTRATOR &c.

June 1843

In this State, a decree in favor of the next of kin on a bill in Equity or petition against an administrator, is not admissible evidence for the next of kin in a suit brought by them upon the administration bond, against the administrator and his-sureties. Nor can a decree in favor of the administrator on such a bill or petition bo given in evidence by him or liis sureties in such an action on the bond.

The cases of *Williams v Hicks,*1 Mur. 437 ; *McICellar*v *Howell,*4 Hawks 34 ; *Chairman*v *Clark,*4 Hawks 43; and *Kay-wood*v *Barneti,*3 Dev. & Bat. 91, cited and approved.

Appeal from the Superior Court of Law of *Davie County,*at Fall Term, 1842, his Honor Judge Nash presiding.

This was an action of debt upon the administration bond of William W. Long, andministrator of Thomas Oaks, deceased, the defendant’s intestate being one of the sureties in said bond. The following case was agreed upon. William W. Long was appointed administrator *de bonis non*of Thomas Oaks, deceased, at August Term, 1831, of Rowan County Court, and gave bond, with the defendant’s intestate and John Hoskins as his sureties, in the usual form. About the year 1833, the relator Rachel, by her then guardian, with the rest of the next of kin of the said Thomas Oaks, dec’d, filed their bill in the Court of Equity of Mecklenburg county, against the said Long and his wife, who was one of the children of the said Oaks, and against the said Long, as administrator of Thomas O'aks and Pleasant Oaks, for an account of the said estates. The defendants putin their an-ser, to which replication was taken. The matter was referred to the clerk and master, an.account taken, returned and confirmed, shewing that the relator Rachel was overpaid, *339and a final decree entered in favor of the said Long. The present suit was brought to recover an alleged' amount in the hands of the said Long, with which -the clerk and mas- °' ter had failed to charge him in taking the account. If the law be in favor of the relators, then they are to have judgment for $832 91, oí which $441 -84 is principal, and to have interest from the 11th October, 1841if for defendant, then judgment accordingly. •

The presiding Judge, having been of counsel in the case, declined sitting on it, but at the request of the parties, and to enable them to take the case to the Supreme Court, gave judgment in favor of the defendant, from which the plaintiffs appealed.

*Morehead*for the plaintiffs.

*Boyden*and *J. H. Bryan*for the defendant.

Gaston, J.

It seems to us upon the facts agreed, that the law is with the plaintiff, and that he is therefore entitled to judgment.

The statute of 22d and 23d Chas. 2 c. 10, in prescribing the form of the bond to be given by an administrator, makes it a part of the condition that the administrator *“*do make or cause to be made a true and just account of his said administration at or before the day of next, and all the rest and residue of the said goods, chattels and cred-. its, which shall be found remaining upon the said administrator’s account, the same being first examined and allowed by the Judge for the time being of said court, shall deliver and pay over to such person or persons respectively, as *the said Judge or Judges by his or their decree or sentence,*pursuant to the true intent and meaning of this act, *shall limit and appoint.”*This condition is not broken by a refusal or-neglect of the administrator to deliver and pay over •the surplus or residue of his intestate’s estate to and among the next of kin, according to the statute of distributions, unless there has been a previous decree or sentence of the spir-*340court, limiting and appointing such delivery and pay-Blent, and therefore an action will not lie *upon the bond*at the instance of the next of bin or any of them to recover amoun|; 0f that surplus or residue, or a share thereof, until after a decree therefor in the spiritual court. *Arhbishop of Canterbury*v *Tappan,*8 Barn. & Cress. 151. 15 Eng. C. L. Rep. 174. The corresponding part *oí*the condition in the bond, which our statute requires from the administrator, is in these words, that the said administrator do make or cause'to be made a true and just account of his said administration within two years from the date of these presents, and all the rest and residue of the said goods, chattels and credits, which shall be found remaining upon the said administration account, the same being first examined and allowed of by the court, shall deliver and pay unto such person and persons respectively, *as the same shall be due unto,*pursuant to the true intent and meaning of this act.”

In expounding this condition our Courts have uniformly held, at least ever since the case of *Williams*v *Hicks,*1 Mur. 437, decided in 1810, that it is broken by a refusal or neglect of the administrator to deliver and pay over to the next of kin what may be due to them under the act of distributions, and that therefore the next of kin may bring suit for their distributive shares against the sureties of the administrator upon the administration bond, without any previous proceeding against the administrator, and whether the administrator has or has not returned an account to, or has or has not made a settlement with, the Court which granted the administration. It is one of the necessary consequences of this construction, that, if there has been a proceeding by the next of kin against the administrator for an account and a decree thereon, such proceeding and decree, when an action is brought against the sureties on the bond, are not permitted to be given in evidence against them. The whole is *res inter alios acta.*They have not bound themselves, that the administrator shall pay what *a court shall deeree*he ought to pay, but that he shall pay *lohat may be truly due*to the next of kin. To establish a breach of this en*341gagement, it must be shewn that the administrator ooes owe what is alleged to be wrongfully withheld, and this must be shewn by proofs upon the trial. And it necessarily follows, also, that as a decree against the administrator is not admissible in evidence against the surety, *e converso*a decree for the administrator cannot be received in evidence for the surety. All this doctrine is so fully asserted in *McKellar*v *Bowell,*4 Haws, 34. *Chairman*v *Clark,*4 Hawks, 43, and *Kaywood*v *Barnett,*3 Dev. & Bat, 91, that we content ourselves with referring to these cases, as clearly recognizing and establishing it.

We cannot but be struck with the seeming hardship and inconsistency, disclosed by this record, of a judgment being rendered for a large sum against the surety, because of his principal, the administrator, having withheld from the female relator her share of the intestate’s estate, when, in a direct proceeding by her against that principal, it was decided that nothing was due to her ; but such inconsistencies must occasionally occur, so long as the responsibilities of the surety remain as they have been definitely settled to be on the bond in its present form. It is for the Legislature to consider, whether results of this kind do not furnish reasons for directing a modification oí the bond, but we must apply the law as we find it.

The judgment of the Superior Court is reversed, and judgment rendered for the plaintiff, according to the agreement of the parties.

Pjsr Curiam. Judgment below reversed and judgment for the plaintiff.