#### THE STATE TO THE USE OF H. G. SPRUILL, Adm’r. vs. *ASA*JOHNSTON & AL.

Where assets have remained in the hands of an administrator for more than seven years unclaimed by the next of kin, and the administrator dies, the Trustees of the University cannot recover in their awn name from the representative of such administrator. The assets can only be recovered by an administrator *de bonis non,*who is immediately answerable over to the Trustees, provided no claim be set up on the part of the next of kin.

The cases of *Goode*v. *Goode,*No. Ca. T. R. 255, *Taylor*v. *BrooJcs,*4 Dev. & Bat. 139, and *Bratten*v. *Bateman,*2 Dev. Eq. 115, cited and approved.

Appeal from the Superior Court of Law of Washington County, at the Spring Term, 1848, his Honor Judge Settle presiding.

This was an action of debt, brought upon the administration bond, which J. D. Bennett gave, with the defendants, as his sureties, upon obtaining letters of administration upon the estate of one James Baldwin. The plaintiff proved the execution of the bond. The evidence showed, that the said Baldwin emigrated to this Country from England in 1816; that about the year 1820 became to the town of Plymouth, where he has constantly resided up to the time of his death, which took place in 1836 ; and that, shortly after his death, administration was committed to the said J. D. Bennett: that Bennett reduced his personal estate into possession, paid off the debts, and had a large balance in hand, due the distributees of said Baldwin, more than seven years before the commencement "of this action ; that the said Baldwin, at his death, left a wife, who was, at the time of his death, the only person known to be a distributee of the said Baldwin, and that Bennett had, before the commencement of this suit *398paid over to one Asa V. Gaylord, with whom the widow of said Baldwin had intermarried, the distributive share due said Asa V. in right of his wife; say one third of the said Baldwin’s personal estate ; that no claim was ever made of the residue of the said estate by any other next of kin, until shortly before the commencement of this action, when administration *de bonis non,*was taken out upon the estate of the said Baldwin, by the plaintiff; Bennet having died some three or four years ago. The evidence showed that one Charles Baldwin, who is a resident of England, was the only next of kin of the said James Baldwin, except the widow, and that it had been more than seven years since the debts of the said intestate Baldwin had been paid off before the bringing of this action. The defendants objected that the plaintiff could not recover, because the funds had remained in the hands of the administrator more than seven years,and that the Trustees of the University were the only persons who could recover. His Honor Judge Settle charged the jury, that the relator of the plaintiff was entitled to recover, under the pleadings in the case. A verdict was rendered for the plaintiff. Judgment accordingly. Appeal to the Supreme Court.

*Heath,*for the plaintiff.

*Iredell,*for the defendants,

Ruffin, 0. J.

The executor of Bennett, the first administrator of the intestate Baldwin, is liable to account to some person for two thirds of the assets, remaining at the death of Bennett in his hands; and the only question is, to whom he ought to account. For the defendants are liable, we suppose, ón the administration bond, to the same extent and to the same person in this action, as the executor would be in a suit against him directly.

It seems to the Court, that precisely the same reasons apply as between the Trustees of the University and an *399administrator *de bonis non,*which do between the latter and the next of kin. The rule is inflexible, that next of kin cannot call for an account and distribution of an intestate’s estate, nor recover the specific property, without having an administrator before the Court, *Goode*v. *Goode,*No. Ca. T. R 255. *Taylor*v. *Brooks, A*Dev. & Bat. *139.*For the next of kin have only a right to the clear surplus after payment of all debts, and for protection of creditors an administrator must be before the Court. It was even doubted, whether, upon, the death of one of two administrators or executors, the representatives of the dead one were not so exclusively accountable to the survivor, that the next of kin of legatees could not sue them together. It was, indeed, held, that they could, upon the equitable principle of following the fund into whatever hand held it. *Bratten v. Bateman,*2 Dev. Eq. 115. But there the administrator of the first intestate is a party, as well as the representative of the dead one. It may be admitted, that in like manner, when there is but a single administrator, and he dies, the next of kin may in a bill for an account join the representatives of the first administrator with the administrator *de bonis non,*and recover from each what he has. But there seems to be no case in which a distributive share, as such, can be recovered but from an administrator, either original, or *de lords non.*Now the Trustees of the University take the place of legatees and. next of kin in claiming the estate, and can only recover by the same remedies. They cannot, for example, bring an action at law for the surplus, as a creditor might sue for his debt. Suppose the estate here to have consisted of slaves on hand at the death of Bennett, undoubtedly the Trustees could not have maintained trover or detinue for them against any one else, more than they could against Bennett himself. It is said, indeed, that here the debts were paid. But that must mean all known debts, and cannot change the principle. The subject matter,-being the administration of an estate, is of equitable cognisance *400and the accounts must be duly taken, before it can be known what the residue is. If the Trustees of the University had obtained a decree against Bennett in his life time, and it remained unsatisfied, that might be a breach of the administration bond, for which the Trustees could put it in suit against Bennett’s executors and sureties So, perhaps, if it appeared that Bennett had committed an actual *devastavit,*the Trustees might have had this action upon a suggestion of that breach in Bennett’s life time. But for a balance merely remaining in his hands, unadministered and not demanded before his death, no claim, we think can be made by the Trustees but through an administrator *de bonis non.*That is so on principle ; and it is likewise so upon the statute under which the Trustees derive their title. The Act of 1836 provides that all the estate remaining in the hands of any executor or administrator for seven years after his qualification, unrecovered or unclaimed by creditors, legatees, or next of kin, shall *by ike said executor or administrator*be paid to the Trustees of the University, Rev. St. eh. 46, sec. 20. Those words construed even without reference to the previous rules of law or legislative enactments, plainly give a claim to the Trustees only against a representative of the first intestate or testator, and not against the representative of the former representative. True it may be, that, after one administrator has held the estate seven years,it is not to rest seven years more in the hands of an administrator *de bonis non,*but the Trustees may treat the latter as administering in trust for them, as, but for the statute, he would have done for the next of kin. But, still, *the provision*is precise, that the estate is to go to the Trustees from the hand of an executor or administrator of the original owner; and that such was the intention of the act is not only to be deduced from the words, as they now stand, but is rendered evident by the contrast in that respect between the act of 1836 and that of 1809, from which the latter on« *401was taken. The original act, Rev. Code C. 763, autho-rised the Trustees to sue for and collect the estate from any executor or administrator of a deceased person *or the representative of such executor or administrator.*Though no suit by the Trustees is remembered against an administrator of an administrator, without having an administrator *de bonis non*before the Court, yet we suppose, that by force of the postitive provision of the act of 1809 such a suit would have lain. But, as it required a statute to change the law in that respect, it must be inferred that in omitting that provision in the Revision of 1836, there was a purpose to restore the old rule, as necessary to the harmony of the different parts of the law. *At*all events, that is the effect of the repeal by the act of 1836 of that part of the act of 1809 ; and there can be little question, that the reason for the repeal was to reinstate the salutary principle, that to the administration of any and every part of an intestate’s estate an administrator of some kind is indispensable. Therefore the judgment ought to be affirmed.

Peb Cubum. Judgment affirmed»