#### Graves &c. *vs.*Downey &c.

October *4.*

Error to tlie Montgomery Circuit; Silas W. Robbins, Judge.

Executors §*c. *Administrators de bonis iloH. Husband and*tdi/e. *Sureties. Demurrer.*

CnANCERÍi

Case *\*Hi,

Administration.

Sale bibs

Settlement with the administrator, by the coj$-

Judge Owsley

delivered the Opinion *of*the Court.

Some time prior to May 1802, William Roberson departed this life, childless, leaving a widow, Mary *Ann*Roberson. At the May court, 1802, of Montgomery county, administration of his estate was granted to his widow, and she shortly thereafter, married Samuel Downey.

Tlie widow and administratrix, together with her husband Samuel Downey, entered upon the duties of the administration, and actually sold, of the estate of said Roberson, goods and chattels to the amount of two hundred and four pounds one shilling and sevenperice, and returned to the county court, a sale bill thereof. At the time of Roberson’s death, he was the owner and possessor of a negro boy, which has ever since been hired out by the widow and her husband Downey.

At the August court, 1811, of the said county of Montgomery, commissioners were appointed to settle the accounts in relation to the estate of the *354said Roberson, with the administratrix and her husband Downey. A settlement was accordingly made by the commissioners, a report thereof returned to court, and at the November court, 1811, ordered to be recorded. By this settlement, the administratrix and her husband were charged with the amount of property *sold*by them in their fiduciary capacity, and the amount for which the negro boy had been hired the several successive years from Roberson’s death up to the settlement, together with the debts owing Roberson at his death, making in the whole, five hundred and twenty-one pounds ten shillings and three pence. This sum was credited by various payments, accounts, *Sec.*made and exhibited by the administratrix and her husband, and allowed by the commissioners, amounting in the whole to two hundred and one pounds, eighteen shillings and eightpence halfpenny.

misstoners of the county court'.

Bill by the distribuí res* against the surviving bus. band of the deceased administratrix ánd her sureties.

Demurrersustained & bill dismissed.

Husband is not accountable after his wife’s death, *355for her *devastavit*as administratrix, committed before the marriage.--^-But for estate which came to hand during the coverture, he remain* liable.

*354According to this settlement, there is a balance of three hundred and nineteen pounds *fourteen*shillings and sixpence halfpenny, against the administratrix and her husband.

To recover their distributive shares of this balance, together with the further sums for which the negro had been hired since the date of the settlement, and *to*obtain partition of the negro, the collateral kindred and distributees of William *Roberson, deceased,*exhibited their bill in equity against, the sureties in the administration bond and Samuel Downey, his wife the administratrix having departed this life. This bill was not exhibited until September, 3 823. and after stating the preceding facts, among other things, charges that, no debts remain against the estate, and that Downey continues to hold the negro, and hire him out for his own benefit, &c.

Downey and the sureties in the administration bond, demurred to the lili, and the court sustained the demurrer, and dismissed the bill with cost.

From that decree, the heirs *Sec.*have appealed.

That Downey and the sureties are *liable for the*estate, is a proposition so obvious, that none, it is presumed, will attempt to controvert it. For a *devastavit*of the estate b,y the wife, before her mar *355y i age, Downey, it is true, could not, after her death, be made to account; but according to the allegations of the bill, and the exhibits therein referred to, it is apparent, that all the estate for which a recovery is sought in the present cause, came' to the possession of Downey after his marriage; and the doctrine is well settled, that for any acts of his as administrator, in right of his wife, he remains accountable, though his wife maj not be living.

In- such case, the husband' surviving the wife administratrix, shall *distribute*all the estate which came to his hands during the coverture, ex ’ cept what remains in ' kind.

And with respect to the sureties, their liability is conclusively fixed by the lerms of the bond, in which they united with the administratrix.

But admitting their liability, the question occurs, can they be made accountable by bill in equity, exhibited by the heirs and distributees of the intestate Roberson? In argument it was not controverted, but what a bill in equity is the proper mode, and might have been sustained *by the*distributees, if the wife of Downey, who was the administratrix, was still living, and a party to the suit; but as sher is dead, it was contended that an administrator *de bonis non*of the estate of the intestate Roberson, should be appointed, and that when so appointed, the appellees would be compellable to account for the estate to him, and that until appointed, the distributees have no rigbtto the aid of a court of equity.

Were it *true,*that if appointed, the administrator *de bonis non,*would be entitled to all the estate for which a de.mand is asserted by the distributees in the present case, there would certainly be great force in the argument.

The same reason that forbids the distributees of an intestate, before any administration is granted, from exhibiting their hill against a stranger who may be indebted to the intestate for an account, would seem also to preclude the distributees, after the death of the administrator, and before the appointment of an administrator *de bonis non,*from bringing a bill against any person, to compel an account for personal matters, to which an"administrator *de bonis non*would be entitled, and it has heretofore been decided, and we apprehend correctly, that until administration is granted, no bill can be sustained by the heirs and. distributees, to compel *356persons liable to the estate, to account for personal tilings. Rut there is a considerable portion of the demand set up by the appellants, to which the administrator *dc bonis non,*if appointed, would not be entitled, and for the recovery of which, he could sustain no suit or action.

Such oí'I be óslate of the twin tor as remains in kind, at tho dentil ctf tiio wife administratrix, ftoes to ilie administra to r'fie *bonis non*; what docs not remain sqc* cío, tho husband must *distribute..*

■Demurrer to the wlioiobill, ■ivliinh oon- ' tains any equity, must be overruled.

O.etober 20.

Such an administrator would, no doubt, be entitled to whatever of the estate of the intestate remains in the hands of Downey, in specie; for whilst in that condition, it forms part of the estate of (he intestate, and must of course, vest in the admiiHS.tríitor *de bpnis*non, whenever appointed. But as respects the estate not remaining in specie, the administrator *dc bonis noii,*if appointed, would have no title.'s^nd of course, such an administrator could sustain no action or suit against Downey, or tiie sureties in the administration’bond for the hire of (lie negro or the. goods &c, of the iqfestate, which Downey and, his wife converted into money.

Except as to the estate remaining in specie, therefore, there can be no necessity for administration *de bonis non*to be granted, to enable the complain - ants in the court below’to sustain their bill in equity, and consequently, the demurrer which went to the whole demand, set up in the bill, should have been overruled, The decree must, therefore, *be*reversed with cost, the cause remanded, to the court below, and a decree there entered, not inconsistent with the principles of this opinion.

PETITION BOB A RE-HEARING,

J. TRIMBLE, ESq.

The counsel for the appellees,, respectfully pray for a re-bearing of tho appeal in this case, for the following reasons: — Downey is only a stakeholder, and although it is admitted, that he he is liable *tb*account for all the estate of the intestate‘that came to his hands while lie was in office, yet it is important to him and his securities, that payment should be rightfully made, otherwise he may be compelled to pay over again.

It is accorded by the court in tiie opinion rendered, that the heirs cannot recover of Downey, the goods remaining in his hands, in specie; the. *357principle is veqognized, that if an administrator. *ke bonis non, could*compel Downey to account for the value of the goods sold by him, the heirs *cannot.*

Have not the creditors of the intestate a right to resort to this fund for the payment of their debts? and if the administrator lend money on interest, or puts it to his own usé, or keeps the slaves in his o vvn service, or hires them out, does not the interest in the one case, and the -hire in the other, go with the principal as an appendage thereto? And yet, by the opinion rendered, it is respectfully suggested, that the creditors will be deprived of the benefit of this fund.

Feme sole administratrix marries, her husband Iras the right to sell the goods. — See Toller’s law of Executors, page 241, 242.

If he sells the goods, and then the wife dies, or her letters of administration are repealed, or being administrator *pendente lite,*or during the minority of an infant executor her office expires, the creditors cannot afterwards sue the husband, and if tliey have actions pending, their suits will abate, because he only holds the office jointly with the wife, in right of the wife, and it doe's not survive to him. * — See Toller’s Law of Executors, page 242, 843.

In either of these cases, if the opinion delivered In this case is correct, the fund arising from the sale of the goods, will be withdrawn from the creditors, and they will be without remedy. The husband got the money lawfully, bis right to it expires with his wife, and‘the question is, ought he to' pay it over to a successor for sake of the 'creditors,' or ought he to make distribution of it among the heirs? He cannot lawfully make distribution, because he does not hold the office of administrator. He ought to pay it to his wife’s successor, because there is no other way by which the creditors can l’each it; and it is to preserve the rights of creditors, that the factitious title of an administrator is created by law. Let it not be said, that the creditors can pursue this fund into the hands of the distributees. This would prove, that administration, in all cases, is useless.

But the bill alleges that there ai'c no creditors. *358This allegation against Downey, is entirely in*» matcr*a^ he can neither admit nor deny it, because, since he has lost the office of administrator, he docs not represent the testator, nor is he, responsible to the creditors, if he should falsely admit that there are no creditors; and therefore, any litigation between him and the heirs, concerning this fact, would be nugatory. But an administrator, when sued by the distributees, is bound to keep enough in his hands to pay the creditors, otherwise ho is guilty of a *devastavit. x*

An administrator, after the. repeal of his letters, is bound to pay over all the assets unadministere.d *to*the successor, who is always appointed *de bonis non.*Toller’s Law of Executors, page 243.

And it seems- equally clear, that he would be bound to account for the price of such goods as he had sold. Same book, 245.

In the opinion delivered, the court seems to decide the cause upon the fact, that an administrator *de bonis*non, could not have any title to the goods sold. It is true, the title of the goods sold is vested in the purchaser, and cannot he divested. But can the distributees claim a reversionary right to the price, upon the death of the administratrix, to the exclusion of the creditors?

An administrator *de bonis non,*after the repeal of letters of administration, has title to the goods remaining in specie, in the hands of the former administrator, but he has no title to the goods sold by his predecessor; and yet it is earnestly, though respectfully suggested, that he has a right to call on his predecessor to account‘for tiie price, otherwise the right of the creditors would, in this state of things, be lost.

An administrator *de bonis non,*from the nature of his office, is required to administer all the estate which has not been administered by his predecessor. Now, a mere sale of the goods, and converting them into money, is not a complete administration of them. It is one step towards it, hut the administration of those goods-is not complete, until the inoney is paid to the creditors, and the surplus distributed among the next of kin.

*359October 21-

*Triplett*for plaintiffs; *Trimble*for defendants.

On the other band it is believed, that no instance lias ever occurred, in which the next of kin have been allowed to recover the proceeds of the persona! goods, in any other way, than by a distribution, made by an administrator who would be responsible to the creditors for his fidelity; hut. Downey is not responsible to ihe creditors for any thing be may do since he went out of office, for he has lost his fiduciary character.

A re-hearing is respectfully prayed for by the defendants.

JA. TRIMBLE.

On the next day, the court overruled the petition.