#### Abner D. Johnston & Wm. Wall, Adm’rs. of J. R. Pickett, *v.*William Lewis.

The administrator *de bonis non,*stands in the place of the *first*administrator, and is bound wherever the latter would be bound, and *concluded,*by whatever would conclude the latter.

The administrator in general represents all the creditors and distributees, and they cannot be heard but through him, and are bound by his acts.

In the case of a fraudulent collusion, on the part of the administrator with others, to misapply the assets of the estate, these may be followed by the creditors and distributees themselves, but not by the successors of the administrator in the administration.

In such a case, however, it is necessary that the administrator, or he being dead, his personal representative should be a party to the suit, as being liable in the first instance.

*41
      *Before JOHNSTON, Chancellor, at Fairfield, July Term,*1837.

This case came up on motions of both the complainants and defendant to modify and reform the decree of his honor the chancellor. The decree, which embodies a full statement of the facts, is as follows:

“It appears by the evidence, that the widow of James R. Pickett, took out letters of administration on the estate of her husband, in August, 1822, and that the purchases by the defendant, which the bill seeks to avoid, were made in January and February, 1823. The bill expressly charges, that the purchases were made with *the consent of Mrs. Pickett.*The language is, “That the said Wm. Lewis, in order to quiet his daughter, Martha G. Pickett, widow of the said James R. Pickett, deceased, and to prevent her,” (she being at that time administratrix,) “from taking measures to protect the estate of her deceased husband from such manifest injustice, stated to her, expressly and repeatedly, before the sale of the property by the sheriff, that he would bid off the property, at sheriff’s sale's, for the benefit of *her and the children of said Pickett:”*and that “immediately afterwards,” (i. e. after the sale,) “he delivered the whole of said property into the possession of said Martha G. Pickett, *upon an agreement,*or *understanding with her,*as plaintiffs have been informed and believe, that from the earnings of said property, the said Martha G. Pickett would pay whatever portions of said partnership debts, should be justly and equitably due by the estate of said James R. Pickett: and then hold said property *for the benefit of herself and children.”*

There is nothing in the bill which amounts to a charge that the fraud, (whatever it might be,) committed by the defendant, in his management of the co-partnership assets, and in diverting the responsibility for the co-partnership debts, from himself, and throwing it upon the private estate of his deceased partner, was concealed from, or unknown to Mrs. Pickett. There -is no charge that she, as administratrix, was at all deceived, when she consented to the arrangement set forth in the foregoing statement of the bill. On the contrary, when it is said, that by contracting to purchase *for*
      *42
      *her and her children’s benefit, the*defendant induced her to forego measures for the protection of the estate entrusted to her administration, the clear implication is, that she knew of the wrong intended by him to the estate, and had the remedy in her own hands — ■ that she was brought to acquiesce in that wrong, not by an ignorance of it, but by the prospect of the benefit held out to her, personally, and to her children.

When she, being administratrix, consented to the sale, she affirmed it so far as she in her representative character could have any influence. The case stated is one of collusion between the representative of an estate and a stranger, to waste the assets, by transferring the title of the property, by means of a sale to that stranger, coupled with a declaration of a new trust. The trust promised and declared by Mr. Lewis, according to the bill, differed entirely from that on which Mrs. Pickett held the property before the sale. This trust was in favor of Pickett’s creditors. The new trust was against them. She held before for the distributees also: the new trust converted the distributees into beneficiary purchasers from Mr. Lewis. The instant the sale was completed, the property ceased to be parcel of Mr. Pickett’s' estate, and became Lewis’s, and if either creditors or distributees of Pickett, could claim any benefit out of that property, it was not by virtue of their ancient rights, but by virtue of the express terms of the bargain between Mrs. Pickett and the defendant. I mean that Mrs. Pickett was so bound by that bargain, that upon the re-delivery to Lewis after the sale, she could not have claimed for the creditors or distribu-tees, any other rights than those she had stipulated for. When the property was re-delivered to her, she could not, as between her and Lewis, administer it according to the general trusts of the law, but only according to the terms of the bargain she had made. All her rights as administratrix ceased with the sale, to which she consented. It is true that both creditors and distributees, if defrauded in any manner by the sale, might bring their bill against Lewis and the administratrix, and set it aside for collusion between them. But the administratrix, as such, could never impeach a transaction for a fraud, to which she was a party.

Then, the question is, whether these plaintiffs ’ can set the sale *43aside. They are neither creditors'nor distributees. This bill is not filed in either of these characters. The plaintiffs come forward as successors in office to Mrs. Pickett, to unravel transactions, by which she was bound. But nothing seems plainer, than that all acts binding upon a predecessor, are equally binding upon a successor.

When I say the plaintiffs do not come forward as, distributees of Pickett, it must not be supposed that I have been inattentive to the statement, that they have not only taken out letters of administration on his estate; but have married two of his daughters.— But their wives have not joined in the bill. Indeed, from the terms of the bill, it does not distinctly appear, notwithstanding something is said of wrong done to creditors, that the plaintiffs are very anxious to undo that wrong, for the benefit of creditors, even if the plaintiffs could be heard on their behalf. The burden of complaint seems to be, that the family of Pickett has been defrauded. The effort seems to be, to set aside the sale for their benefit, and for this purpose to urge all sorts of objections to it, whether relating to creditors or distributees, and yet to have it set aside in such a way, as to render the property, after it shad be restored to the estate, not subject to the general provision of the law, (lest the creditors should leave but little of it for distribution) but rather that an execution should be decreed in favor of the family, of the contract, which it is alleged Mrs. Pickett made with the defendant on their behalf. The plaintiffs, who are merely administrators and successors to Mrs. Pickett, are bound as she was, in her official character bound, and cannot impugn the sale. No creditor or distributee complains, and-the plaintiffs cannot be heard on their behalf. An execution of the bargain, made by Lewis with Mrs. Pickett, cannot be decreed, inasmuch as the parties interested in the execution of it, do not come forward to claim the benefit of it. The administrator of Mrs. Pickett and her children, not the administrator of Pickett, must make'the application for that purpose. To correct the alleged fraud, the creditors and distri-butees of Pickett, must apply, and make a defendant not only of Lewis, but of the administrator of his accomplice.

I am sorry that after mature reflection, I am constrained on *44grounds purely technical, to dismiss so much óf the bill as seeks to set aside the purchases made by the defendant; for I am persuaded the whole proceeding was fraudulent. Mr. Lewis has, I think, forgotten the purpose for which he put stock into the partnership. He could not have done it, merely as an advancement to his daughter: or why not have given the money, without retaining an ownership over it, as it appears, by keeping his name in the firm, as owner of the stock advanced, he did *1*If his name was incorporated in the style of the firm, not for the purpose of indicating his ownership of the stock, but for that of giving credit to the firm; then why object to being responsible for his share of the debts, which it was his very object to enable the firm to contract *1*If it be said, that as between Mr. Lewis and the creditors of the firm, he by the terms of the partnership is and always was liable and is willing to be so regarded, yet that as between himself and his copartner, the understanding was, that he merely put his name and credit, and Pickett was bound to indemnify him: where is the proof of any such stipulation ? Where is the proof of any special terms of any kind, or description whatever, limiting his liability in any the least degree, either as between the firm and its creditors, or as between himself and his copartners ? The proof again is very conclusive, that he did interfere to prevent the collection of Cassity’s debt: whereas his duty as surviving partner, was to take every means for its collection. And, again, no higher proof could reasonably be demanded, than has been furnished, that the bacon purchased from blooper and others, was bought for the copartnership ; that the custody of it was given to himself, and that he actively engaged in vending it. tie not only obstructed the collection of funds, for the payment of partnership debts, as in ■Cas-sity’s case, and collected others, the collection of which he denies and of course withholds from the payment of demands owing by the firm, as in the case of the bacon; but there can be no doubt, from the evidence, that he promised his daughter to buy in the property for her benefit and that of her children; thus confederating with her in one character to waive all objections, which in another she might have made to the application of the private property of her deceased partner, to the payment of demands which *45survived against himself exclusively. Again, judging *by*the evidence, I cannot doubt that Mr. Lewis had the actual control of the sales. The first was made the 6th of January, 1823. Mr. Robinson, the owner of the oldest execution, is uncertain whether he ordered the sheriff to proceed. But when I look at the abstract given in evidence, I see reason to conclude he did not: for of all the executions under which that sale was made, it appears that but two were within date at that time, and they were very small. Mr. Robinson’s the largest and oldest, and that of Hocker and others, the next in order and amount, were both out of date. Of the other two, one was that in favour of Christia. The amount was small; and if it had been ever so large, it could not have touched Pickett’s property, and that for a reason, *than*which, there could not have been a higher evidence of fraud, in making a sale under it; there was never any such execution. Christia’s execution, under which Mr. Lewis purchased, was not against Pickett, but against Lewis, himself, exclusively. Mr. Lewis knew this when he purchased under it: and could not but have been conscious of the fraudulency of the proceeding. The fourth execution under which the sheriff professed to sell, was very trifling in amount. There were also some other executions, but the sheriff did not sell under them ; and their amount would not have justified so extensive a sale as was made.

That there was a naked right, even under the smallest executions, to proceed, is not material. It is not the legality of the sale, but the fraudulency of Mr. Lewis’ motives, we are now considering. The question is, whether there are not circumstances to show that *he*hastened a sale, which there is no evidence any other person urged, and that for the purpose of making Pickett’s property pay an undue proportion of the debts; and for the purpose too, of carrying the property purchased over to his daughter, to the injury of her husband’s estate.

Under this sale, made under executions out of date, executions which Mr. Lewis knew never existed, and executions within date, but to a very trifling amount, Mr. Lewis purchased every article of property sold, to the amount of *$8988*— no *other person urging the sale.*He himself having stated that *he*was going to make *46arrangements to have the sale made. Can there be any reasonable doubt, that he had the control of the sale ? If any doubt could exist, another circumstance seems conclusive. At that very time Mr. Robinson advanced him money. (I say advanced *him,*for although it may have passed through the sheriff’s hands, it was not to *satisfy*any execution, nor yet to purchase any execution by Mi'. Robinson himself, for he charged the money to Mr. Lewis.) Mr. Robinson, advanced him over $2000. — For what purpose ? — ■ Surely to enable him to control executions with it, and .by the way, this is strong evidence, that Robinson was not pushing his own execution, which was the oldest. Having stated that he intended to bring on the sale; having promised to purchase for his daughter ; having' borrowed money to prepare for it; urging executions which the owners did not urge; having all in his own hands, and an interest to subserve with them; having purchased every article sold to a very large amount; and there being no evidence that he paid off one single execution, or any part of the price he bid for the property; having done all this, while he was liable exclusively, and no account taken: I should be hard to persuade that there was not something wrong in the matter. The next sale was on the 4th of .February, under Robinson’s execution and that of Hocker and others. The other two were dropped. But at that very time, Robinson’s execution was paid off by a bond, previously sent on by Lewis himself, and accepted by Robinson, in full satisfaction. Not only was the sale, so far as Robinson’s execution concerned, void ; but here I repeat again, is evidence that Lewis had control of the sale.

I have said so much,- in order to show that in dismissing so much of the bill as asks to set aside the purchases of the defendant, I am not insensible to the moral justice of the case, and to testify the extreme regret with which I bend to the foi'ce of rules, purely technical. But the plaintiffs are entitled, if they desire it, to have an account taken’of all the dealings between their intestate and the defendant, on the partnership accounts, and of all payments made by the one for the other, and to have the balance stated. They are also entitled to have inquiry, how the purchase money, bid by the defendant, has been applied; and upon the report thereon, to *47have an order, that it be fully and properly applied, (if that has not been done). It is ordered accordingly.”

The complainants now moved the court of appeals to modify the decree of the circuit court, pronounced in this case, upon the following grounds:

1. Because the agreement which was entered into between Martha G. Pickett, the first administratrix of complainants’ intestate, and the defendant, Mr. Lewis, respecting the sales and purchases of the said intestate’s estate, was intended entirely for the benefit of said estate, or such would be its legal and equitable effect, and complainants, as administrators de bonis non of said estate, had a legal and equitable right to enforce a specific performance of said agreement.

2. Because the defendant practised a gross fraud and imposition upon the first administratrix, in obtaining her consent to the sale of her intestate’s estate, to satisfy debts which he was legally bound to pay himself. His purchases, made under such circumstances, ought to be considered in trust for said estate, and be subject in equity to the claims of the administrators de bonis non.

3. Because the creditors and distributees of the estate of the said James R. Pickett, are virtually parties to this case, and if the conduct of the defendant was such, with respect to said estate, as to avoid his acts in relation thereto, in favor of creditors and distri-butees, the allegations contained in the bill are amply sufficient to authorize such a decree.

4. Because the conduct of the defendant in relation to the estate of the complainant’s intestate, being so manifestly fraudulent and illegal, the court ought to give them leave to amend their bill, by making the creditors and distributees of said estate, parties thereto, if they are not already sufficiently parties to the same; and the relief sought for, by the said bill, cannot otherwise be obtained.

- The *defendant*also moved this court, to reform the decree in the following particulars:

1. That there should be no account, as by the acts of the intestate and the defendant, during the life of the intestate, there was a virtual dissolution of the copartnership and an assumption of a separate liability by the intestate, for the debts; and the confession by the defendant, to Robinson, can only be regarded as collateral, *48when reference is had to the course of business between the intestate and defendant.

2. That the defendant is not bound to see to the application of the purchase money at the sheriff’s sale, and that the presumption is reasonable, that the sheriff applied it to the payment of the executions against the intestate : and that if the purchaser were bound to see to its application, it would be unreasonable to require it after a lapse of near twenty years, and after the death of the sheriff, and when the executions cannot be found.

3. That it is sufficiently accounted for, when traced to the' sheriff, who held the executions, and by the evidence of John Robinson.

4. That the remedy of the distributees of the estate, if they have sustained any injury by the former administration, is at law, upon the administration bond.

Curia, per Harper, Ch.

We concur with the chancellor, that the present complainants, the administrators de bonis non, stand in the place of the first administratrix, and are bound wherever she could be bound, and concluded by whatever would conclude her. The object of the bill is to set aside the sale on the ground of fraud. Now, there might be an actual fraud practised on the administra-trix herself, which she herself might sustain a bill to be relieved against; but there is no ground for supposing that any such imposition was practised on her, and so the chancellor has concluded. The charge is, that she fraudulently combined with the defendant to effect the sale, and so defeat the rights of the separate creditors of James R. Pickett. It would seem from the bill, that there could have been no fraud intended on distributees, for the allegation is, that he purchased in trust for those who were the distributees. — ■ The administratrix, in general, represents all creditors and distri-butees, and they cannot be heard but through her, and are bound by her acts. Only, in the case of a fraudulent collusion to misapply the assets, these may be followed by creditors and distributees themselves; but certainly not by her successors in administration. In such case, however, it is necessary that the administratrix herself, or she being dead, her personal representative should be a party to the suit, as being liable in the first instance ; and the bill *49could not be sustained in its present form, for the want of such a party. It does not appear to us that the fraud, if any fraud existed, could have been in the sale itself. The bill charges that the ad-ministratrix fraudulently combined with the defendant to force an unnecessary sale, and so obtain the property at an under price, in trust for the administratrix herself and the children of her intestate. But the evidence is perfectly satisfactory and uncontradicted, that the property *sold*for a very full and indeed a high price. There could then have been no fraud in this respect, and the purchase in trust would be evidence, not of fraud, but of very liberal bounty. Even if the sale were unnecessary, this would not be conclusive of fraud, when it was made on advantageous terms. But, certainly, the intestate’s estate was largely indebted, which rendered an extensive sale necessary. With the existence of the alleged trust, we have nothing to do in the case between the present parties. — ■ But there is a claim which the administratrix herself, if she were living, might certainly sustain against the defendant. Though he purchased at an adequate price, it appears that he has not yet paid the purchase money. So far as he paid to the sheriff, we think he must be credited, but beyond that, there remains a large balance, which seems still to be due. If we were to suppose that the admin-istratrix, admitting, however falsely and collusively, the defendant to be a creditor of her intestate’s estate, to the amount of the balance, permitted him to retain it as his own, the complainants, her successors, would be bound by her acts. But there is no evidence of this, and certainly we are not authorized to presume it. It is easy, from all the circumstances, to see the true nature of the transaction. There were debts of the firm to which the defendant was liable at law, but to which the estate of the intestate was bound to contribute — or perchance to pay in full. The defendant had also a personal claim on the estate of the intestate. The balance was left in his hands, or retained by him, that he might apply it to the satisfaction of demands to which the estate was liable, and the complainants have a right to an account of the manner in which he has performed this trust. For this reason, we have thought it necessary to enlarge the order for an account so as to embrace not only the partnership, but all other transactions between the parties. This is not a suit to distribute the estate of an insolvent, in *50which we are to marshal assets and determine priorities. If the defendant is now a creditor of the intestate, on the score of his personal claims, or has made himself so by paying off debts which the intestate’s estate was bound to pay, he has a right to retain the balance of the purchase money, as against the complainants, whatever may be his liability to separate creditors. There are no separate creditors before us. It is plain that the administratrix concurred in his retaining the fund for the purpose of paying himself, or discharging any liability -to which the estate was subject.

*Clarice*& *M’Dowell,*Sol. for complainants.

*M’Call*& *Preston,*for defendant.

In taking the partnership account, if the defendant contributed an equal amount of capital and was entitled to an equal share of the profits, it may be, as the intestate was the acting partner who had the goods in his hands and for the most part received the profits, that he may be found a creditor. If, such were the terms of the partnership, then after exhausting the partnership assets in defendant’s hands, the intestate’s estate was bound to contribute one-half towards paying off the partnership debts. If, as defendant alleges, he only lent his name to the firm and claimed no share of the profits, then the intestate’s estate was bound, as between the parties, for the whole of the debts. If the defendant, as surviving partner, has occasioned the loss of assets, as by improperly discharging the suit against Cassity; or by neglecting to collect debts which he might have collected, he will be chargeable with the amount of this loss. All these things may be inquired of on the reference, and it will determine how far the estate was bound to contribute to the payment of the debt to Robinson and the other partnership debts, which defendant alleges he has paid. If, as suggested in argument, the money advanced to the intestate, being the proceeds of his note, endorsed by defendant and discounted in bank, was in fact applied to partnership purposes, this also may be a subject of inquiry — in short, as I have said, all the money transactions between the parties, so as to show the present state of the accounts between them: And it is ordered accordingly.

Johnson, Dunkin and Johnston, Chancellors, concurred.