#### *The Bank of Charleston*vs. *William H.*Inglesby, *administrator, et al.*

1. A tract of land had been mortgaged by defendant’s intestate, to complainant, which, under a decree of foreclosure in this case, was sold by the Master; the proceeds of sale paying off complainant’s debt, and leaving in the Master’s hands the bond of the purchaser, as a surplus, subject to the order of the court. Order passed, that the Master retain the surplus of the funds, subject to the further order of the court, and a rule upon him to shew cause why the bond should not be assigned to the administrator of the intestate, to be applied in due course of administration.

*2.*The defendant, as administrator, not entitled to receive the money due on the bond. *Vide, Ex-parte Foster,*Rice Eq. Rep. 19. But, as the creditors were entitled to be paid out of the fund, it was ordered by the court, that the Master deliver the bond to the administrator, upon his entering into bond to him, in double the amount of the purchaser’s bond, with a condition for its faithful administration. Also, ordered, upon the refusal or neglect of the administrator, within a limited time, after notice of this order, to give the bond directed, that the Master give notice to creditors to establish their *400demands before him; that upon receipt of the money, the same he applied to the payment of the intestate’s debts, in the order prescribed by law. Any balance remaining in his hands to be distributed amongst intestate’s heirs, or next of kin, in the proportions prescribed by the Act for the distribution of intestates’s estates.

*Before*Donkin, Ch., *at Charleston, July Term,*1843.

This was a rule upon the Master in Equity. The facts of the case will be fully apparent from the order passed, on motion of complainant’s solicitors, the rule, and return thereto..

The master’s report, in this case, being read, on motion of Petigru *&*Lesesne, complainant’s solicitors, ordered that so much of the same as relates to the sales of Bull’s Island plantation, to Charles Jugnot, for five thousand seven hundred dollars, and the account of the disbursement of the funds annexed to the report, be confirmed. And it is further ordered, that the master do retain the residue or surplus of the funds arising from the said sale, consisting of Charles Jugnot’s bond, conditioned for eight hundred and fifty-seven dollars and sixty-eight cents, subject to the further order of the court.

On the 19th July, 1843, Mr. DeSaussure, solicitor of Win. H. Inglesby, administrator of Newman Kershaw, took out a rule upon the master, to shew cause why the bond of Charles Jugnot, for $857 68, in his hands, should not be assigned to Wm. H. Inglesby, administrator of Newman Kershaw, to be applied to the payment of the debts of Newman Kershaw, in due course of administration.

Upon the return of the rule, the master shewed for cause, that the bond of Charles Jugnot, in his hands, was the residue or surplus of the purchase money of Bull’s Isl- and plantation, mortgaged by Newman Kershaw, in his life-time, to complainant; that the sales of the mortgaged premises, under decree of foreclosure, in this case, had paid off the complainant’s debt, and left the said bond as a surplus in his hands, subject to the further order of the court; that the estate of Newman Kershaw was insolvent, *401and the master did not feel justified, without the order of the court, in assigning the said bond to the administrator of Kershaw, because his administration bond covered only his administration of the personal estate of the intestate.

On hearing the cause assigned the Chancellor dismissed the rule.

An appeal was taken from the order of the Chancellor dismissing the rule, to ask the directions of the Court of Appeals on the subject, and with a view to establish the future practice of the court in similar cases.

*H. A. DeSavssure,*Solicitor for Appellant.

*Petigru*& *Lesesne,*contra.

*Curia, per*Johnson, Ch.

That the defendant is not, in the character of administrator, entitled to receive the money due on the bond, is directly decided in *Ex-parte Fos*ter, Rice’s Eq. Rep. 19. The power delegated to him by the Ordinary, is to administer the goods and chattels, rights and credits, which were of his intestate, at the time of his death, and his bond is conditioned to perform that duty. His lands descended immediately to his heirs, and although by law they are subject to the payment of debts, the administrator has no power over them. It is plain, therefore, that the sureties to his bond would not be liable for money received by him, arising from sales of real estate.

The creditors are, however, entitled to be paid out of the fund, and the court might, in its discretion, confide the fund to any one, to be administered. But it may well be supposed, that the administrator has already had notice of all the demands against the estate, and it is more fit that the fund should be paid to him. He must, however, give security for its faithful administration. If he refuse or neglect to do so, it will be the duty of the master to administer it.

It is, therefore, ordered and decreed, that the master do deliver to the defendant the bond of Charles Jugnot, referred to in the proceedings, on his entering into bond, to the master, in double the amount due on the said bond, with *402a condition that he shall well and faithfully apply the proceeds thereof, in the due course of the administration of his intestate’s estate; and if the defendant shall refuse or neglect to do so, for the space of thirty days after notice of this order, the said master is hereby ordered to advertise for creditors to come in and establish their demands against the intestate, within a certain time, to be prescribed by him, and that on the receipt of the money due on the said bond, he do apply the same to the payment of the debts due by the intestate, in the order prescribed by law; and if after the payment of all the debts, any balance remains in his hands, he do distribute the same amongst the intestate’s heirs, or next of kin, in the proportions prescribed by the Act for the distribution of intestates’s estates.

Dunkin and Harper, Chancellors, concurred.

JohnstoN, Ch. absent from indisposition.