#### REBECA UTLEY et al. *vs.*BURWELL RAWLINS et al. Adm’rs of WILLIAM UTLEY.

It is not generally the duty of an administrator to volunteer in paying debts which his intestate has contracted as surety, and procuring af-signments thereof to a trustee — and if in pursuing this unusual mode of administration, he should happen to injure the estate committed to his charge, he would he obliged to show very special and sufficient reasons for his conduct, before he could exonerate himself; and, therefore, he cannot ordinarily be charged with a want of due diligence in prosecuting a claim against his intestates’s principal, in not pursuing such a course.

Where an administrator has fully administered all the assets of an estate, in his hands, he cannot be charged for not prosecuting a doubtful claim at his own costs, when the next of kin refused to incur the liability of costs.

The bill, in this case, was filed by the next of *kin*of William Utley, against his administrators, for an account. Upon the hearing, it was agreed between the counsel, that the defendants had fully accounted with the plaintiffs, unless they were chargeable for a breach of duty in not having used due diligence to recover a sum of money for which their intestate had made himself liable, as surety, on a bond of John *439A. Ramsay; and which the defendants had paid out of the assets of their intestate. It appeared that Ramsay died in September, 1821, and Philip Alston was appointed admin is-istrator of said Ramsay’s estate, in November, 1821. Shortly thereafter, suit was brought against Alston, the administrator of Ramsay; these defendants, as administrators of Ut-ley, and Thomas Hill, also a surety on the bond, by the obli-gee, Conrad Staley; and at August Term, 1823, judgment was obtained thereon; but with a finding that Alston had fully administered. Staley took out execution, and levied it on the goods of Utley, in the hands of the defendants; and made thereout full satisfaction of his judgment. Hill was insolvent, and every effort on the part of the defendants to procure contribution from him, proved unavailing. No suit was brought by the defendants, to recover from Ramsay’s estate, the money so paid by them as administrators. One of the plaintiffs, in her own behalf, and as guardian for the other plaintiffs, did cause an action to be instituted, in the name of the defendants, against the administrator of Ramsay, in November, 1825. After'this action had been pending some time, a rule was obtained by the defendant, requiring that the plaintiffs should give security for prosecuting the suit, or that the same should be dismissed. The defendants proffered to the plaintiff who had caused the action to be brought, to give the security required, upon being indemnified from the costs. This offer was not accepted — the security was not given — and under the rule, the suit was dismissed.

The defendants, in answer to the charge of neglect, said, that when Staley’s judgment was obtained against them, it had been ascertained that the estate of Ramsay was utterly insolvent, and that any attempts on their part to effect the recovery of the money paid in satisfaction of this judgment, would but run the estate of their intestate, to costs, without the least prospect of benefit to it.

*W. H. Haywood*for the plaintiffs.

*Badger*for the defendants.

Gaston, Judge,

after stating the case as above, proceeded as follows: We do not deem it necessary to examine very *440particularly the testimony by which these allegations are supported, as the parties do not so much disagree respecting facts, as they do upon the principles applicable to them. It is not questioned, but that at the time the judment was rendered against the defendants, all othe assets in the hands of the administrator of Ramsay, were exhausted. It is also manifest upon the proofs, that before that time judgments had been signed by creditors, with a finding that the administrator oí Ramsay had fully administered for an amount exceeding the value of all the real estate, and *sci. fas.*had isssued to subject that real estate-to the satisfaction thereof. It appears, also, that after these *sci. fas.*had issued, on the petition of the guardian of the heirs, the County Court made an order for selling íhe real estate on credit; that it was sold accordingly, and all the proceeds distributed rateably among those who had so issued their *sci. fas.,*and proved insufficient, by a large sum, to pay the amount of their judgments.

On the part of the plaintiffs, it is, by their bill insisted, that the defendants are chargeable, because they *might,*by paying off Staley’s demand before suit, or immediately after suit, and taking an assignment thereof to a trustee, have pushed the claim *pari passu*with the most diligent and successful creditors of Ramsay,0 and have either obtained a judgment against the administrator before he had legally" discharged himself of the personal assets, or, at all events, have come in for a share in the distribution of the real assets. It is *possible,*that this course of proceeding, might have been advantageous for the plaintiffs, and if it had been shewn that it was one which was obviously required by a regard for their interests, and which the defendants had the means of pursuing, the omission to take it might have been pressed, with much force, as a defect of diligence. Certainly, however, it is not generally the duty of an administrator to volunteer in paying debts which his intestate has contracted as surety, and procuring assignments thereof to a trustee — . and if in pursuing this unusual mode of andministration, he should happen to injure the estate committed to his charge, he would be obliged to shew very special and sufficient reasons for his conduct, before he could exonerate himself. It *441is not pretended that this course was intimated or recommended, or even known to the defendants. It is not shewn that they had reason to believe that the claim in their hands could be pushed with more celerity than it was by Staley. And it is not shewn that they had any assets wherewith to make the purchase — other than the negroes of the estate; and if they had *sold these*to raise money wherewith to buy up the claim, and loss had been incurred, they could scarcely have saved themselves from a strict accountability therefor. A trustee owes perfect integrity and reasonable diligence to his cestuy que trusts. There is not the slightest ground to attribute unfairness of purpose to these defendants; and if there has been any error on their part, it is not such as indicates the want of ordinary prudence. After the result of any course is ascertained, it may be easy to see how it might have been avoided by some different mode of procedure. But, in judging of the *prudence*of the course pursued, it is proper to throw out of consideration our knowledge of what was its result.

*rha Court <iuil7 as t0 pJt distinct- ^ t“eIssue gurí to which there lire no PTM°rs-

The next ground taken in the bill for charging these defendants is, because they declined to prosecute the suit against Ramsey’s administrator. We are entirely satisfied'that this ground is not tenable. It is certain that the administrator had 'no assets — and the defendants would have been obliged, if they prosecuted the suit, to carry it on at their own costs. The estate had then been settled — they had nothing of it in their hands — and if those beneficially interested would not incur the liability of costs, it is against conscience that they should require the claim to be conducted for their benefit, at the expense of the defendants.

Some other grounds have been taken by the plaintiff’s counsel, in argument, which were not put distinctly in issue by the pleadings, and with regard to which there are no proofs. They have prayed for that purpose an enquiry. We do not think — without some evidence rendering the matter alleged at least probable — that we should be justified jn recting the enquiry asked for.

*442Jt is the opinion of the Court that the bill must be dismissed, but not with costs.

Per Curiam. Bill dismissed.