#### William Sager *v.*Paul J. Warley et al.

By law an administrator is bound to make equal distribution and to deliver to each distributee his equal share of the estate.

Complainant, as one of the distributees of his father’s estate, complained of the inequality of a division of that estate, made in 1817, by commissioners, under a commission from the court of ordinary. It appeared that under the first section of the division made of the negroes among the distribu-tees, complainant received an equal share with the other distributees, but that in subdividing' a deceased child’s share of the same estate, the share of complainant fell short, and that he was to receive the sum of $210 41, from the other co-distributees. Held, that neither the administrator of the father, nor his securities, were liable to the complainant for the amount.

*Before DUNKIN, Chancellor, at Orangeburgh, May Term,*1838.

John Sager died in 1816 or 1817, intestate, and John J. Beatip administered on his estate. Beatie is dead and his estate insolvent. The complainant, a son of John Sager deceased, has filed this bill against the defendants, sureties on Beatie’s administration bond, for an account of his distributive interest in his father’s estate. The intestate left a widow and four children and twenty-one negroes. J. J. Beatie, in December, 1817, presented to the Ordinary the following petition:

“ I request permission to sell and divide the estate of John Sager, deceased, for the purpose of making a division amongst the heirs of said estate, (the provisions to be sold for cash).

J. J. Beatie, Administrator.

“Samuel P. Jones, Esq., Ordinary O. D.”

“ Permission granted.”

In conformity with this request and permission, the following division was made: “Agreeably to a commission exhibited to us by Mr. James Beatie, administrator of the estate of John Sager, deceased, we met on the 19th day of December, 1817, and pro*27ceeded according to instructions from Mr. Beatie, to divide the personal estate of said John Sager, in manner and form following, (having been previously sworn,) viz:

*“First Division.*— Twenty-one negroes, value annexed, we put into three equal parts, so as to give Mrs. Sager her third part; she drew Toby, Sam, Nanny, Rachel, Leah and her child Jacob, and according to valuation this lot fell short $18,33 1-3.”

*“Second Division.*— The remaining fifteen negroes were then put into four equal parts, and were drawn as follows: Miss Cath-arine Sager drew Mary, Binah and Jim, and is to receive $84 16. John Sager drew Daniel, Nanny and Kate,and is to receive $8416. William Sager drew John, Betsy, Adam and Hannah, and is to pay $95 84. Tom, Rachel, Davie, Ellick and Venus, being the lot which would have fallen to the deceased child, is to pay $92 84. We then made the third division of those five negroes, and Mrs. Sager drew Raehel and Dave, and is to pay $218 75. Miss Catharine Sager drew Ellick, and is to receive $231 25. John Sager drew Tom, and is to pay $318 75. William Sager drew Venus, and is to receive $306 25.

“Given under our hands this 19th day ofDecember, 1817.

Edward Richardson,

William S. Thomson,

Andrew Heatly.”

From the foregoing division, it appears that the complainant’s lot was valued at less than the others, and that he was to receive $210 41.

The commissioner refused to charge the defendants with this sum, and the complainant excepted to the report, which exception the chancellor over-ruled.

In reference to this exception the chancellor says:

“As to the third exception, I do not see on what principle the administrator of Sager could be charged. A partition of the negroes of his estate was made among, the next of kin. The regularity of that partition has not been called in question. In the division, the complainant was to receive a certain sum from his co-distributees. It may be that it has not been paid, but of that I am by no means satisfied. It is certain the administrator, as such, *28had nor authority to receive it, still less to enforce the payment of it. I think the exception must be over-ruled.”

The complainant moves to reverse so much of his honor’s decree, as overrules the third exception to the commissioner’s report :

1. Because the division was illegal; and having been made at the instance of the administrator, he is liable to the complainant for the whole, value of his interest in the property divided.

*2.*Because the evidence, though not conclusive, furnishes a strong presumption that the administrator, Beatie, had received from the other distributees the amount assessed by the commissioners to equalize the shares.

Curia, per Johnston, Ch.

The only points argued before us, relate to the first and third exceptions taken by the plaintiff to the commissioner’s report; and this court is of opinion that the chancellor’s decree upon them is not erroneous.

My impression is, that the division made by the commissioners appointed by the ordinary, was unauthorized by law; and that if the plaintiff had not retained possession of the property assigned him, and otherwise signified his acquiescence in the proceeding, he might have had a new distribution. In that case, however, it is not clear that "he would have been entitled to the sum which he claims for equality of partition even if the, same negroes should again be allotted to him. We have no other evidence that these negroes fell short of the average value of a child’s share, than the opinion of the three individuals who' made the division in 1817; which upon the assumption that they had no official right to make the division, or give the opinion, is no evidence.

But as the plaintiff has affirmed that proceeding, the question which was argued on the circuit and again in this court, does arise: — whether the administrator- was liable to the plaintiff for the sum assessed in his favor in the division of 1817, considered as a valid transaction? I think that, but for a circumstance which I shall presently mention, the administrator should have been charged. By law, an administrator' is bound to make equal distribution, and to deliver to each distributee his equal share of the *29estate: and if he withholds from one, the whole, or any part of his full share, it is no excuse that he has delivered it to another; no more than an undue application of the assets in the payment of debts, would justify the neglect of any particular creditor : and no more, it appears to me, than excessive payments to particular legatees, under a will, would exonerate the executor from satisfying the other legatees. But it appears here, by the second section of the division, that the plaintiff, as *distributee of his father,*in fact received more [by $95 84] than his equal share. It was only when' a subdivision came to be made of the deceased child’s share, that the plaintiff sustained a loss. But that loss fell upon him, not as a distributee of his father, but as a distributee of the deceased child. Beatie, the administrator of the father, was not responsible for that child’s share, either to the distributees of the father, or to those of the child, but to the administrator of the child, who alone could call him to account.

After the lapse of twenty-one years, the court would presume the appointment of an administrator, and payment to him; especially when aided by such circumstances as appear in this case. Then, as to the application of the *$800*paid on the judgment, the court concurs in the remarks made by the chancellor; and it appears unnecessary to add any thing to what he has said. The case of Field v. Holland, fully sustains his opinion. In general, it is a rule not only of law, but of sound reason, that when an act is done, fairly susceptible of two interpretations, or to which two different operations may be justly allowed, it shall be construed most against him who does it, and in favor of the other party: and it is not perceived why the payment ■ of money should not be governed by the same principle. As between the parties, themselves, it would be difficult for the debtor to satisfy the conscience of any just man, that when he has made a general payment, without directing its application, the court should not so apply it as to promote to the highest degree the interests of the creditor. The circumstance that the persons contending here for a particular application, adverse to the interests of the creditor, are sureties, does not appear to authorize a departure from the general rule. — ■ Certainly sureties are entitled to the benefit of any equity accru*30ing to them, personalty, from any quarter whatever, provided those equities are extrinsic to their original undertaking. And I suppose that equities merely personal to the surety, if they really are extrinsic to the original undertaking, will not be disparaged by the mere fact that the suretyship has occasioned them to exist. But, here, the very spirit of the original undertaking binds the sureties of Beatie, exactly as he was bound, and silences them from claiming as a payment upon a particular demand, that which he could not insist on as such.

*T. W.*Glover, for complainants.

*Gregg,*contra.

The motions are dismissed.

Johnson and Harper, Chancellors, concurred.