#### James L. Tucker’s exrs. *v.*Cyrus and M. Crawford’s admrs.

Executors and Administrators — Administrator de Bonis Won-Refunding Bond— Settlement.

An adminstrator de bonis non cannot be compelled to accept a refunding bond taken by an executor and thereby discharge the legatees from liability incurred by their testator as executor.

APPEAL FROM WASHINGTON CIRCUIT COURT.

September 27, 1869.

Opinion of the Court by

Judge Peters:

We extract from the elaborate statement of facts in the petition, that in 1855, Cyrus Crawford died intestate in Washington county, having given his estate to his wife, Mrs. M. E. Crawford, for life with the power of disposing of it by will except $1,000 which he bequeathed to Mrs. Willis, and appointed his wife his executrix — and she qualified as such; about 18 months after the death of her husband Mrs. Crawford died, having disposed by will of all her estate, and that left her by her husband. James L. Tucker was appointed administrator with the will annexed of Mrs. Crawford at the February term, 1851", of the Washington county court — and in March following the; said Tucker was' appointed by said court administrator *cum testamento annexo de bonis non*of Cyrus Crawford.

Some time in 1868, said Tucker, having made and published his will died, and appellants qualified as his executors, and filed this petition against appellee, who, in the mean time, had been' appointed administrator *de bonis non*with the will annexed, of Oyriis Crawford, and also of Mrs. M. E. Crawford, and also against the legatees and husband, the devisees of Mrs. M. E. Crawford and others and allege among other things that said Tucker in April, 1858, settled his accounts with the judge of the Washington county coiirt both as- administrator of Cyrus Crawford, and also of Mrs. M. E. Crawford, from which it appeared that of the assets of the former, the latter had *412received $1917.64 and had paid out $1575.61, leaving a balance of $342.03 in her hands at her death.

Harlan, *for appellant.*

Riley, *for appellee.*

That on the 7th of April, 1858, said Tucker paid to Willis and wife the legacy left to Mrs. Willis by O. Crawford with interest being $1092.16, and toot their receipt, and a refunding bond with surety — That appellants had paid over all the assets of the Craw-fords in their hands as executors of Tucker to appellee — And from an incomplete settlement of the accounts of their testator as the personal representative of the two Crawfords, that all the assets with interest computed to 21st of November, 1860, amounted to $1242.29 and their credits amounted to $1484.66, showing a balance in favor of their estate $242.37; that among the credits claimed and which he had paid was one of $144.50 to appellee, but which was not properly verified and proved.

They pray for a settlement of the accounts of their testator, Tucker, as the personal representative of the two Crawfords— and as their then representative they make appellee a defendant and seek a settlement with him' — and seek a final settlement so far as their estate was connected with the Crawfords, whose estates appellee represents, and although so far as they seek to compel him to take the refunding bond of Willis and wife and discharge them from the responsibility that their testator may have incurred for over payments to said Willis and wife and others, and to make appellee settle his fiducial accounts if they in fact ask it, that relief can not be granted. Still the other relief sought by them, appellants from their allegations appear to be entitled.

Wherefore Judge Hardin not sitting, the judgment sustaining appellee’s demurrer to the petition must be *reversed*and the cause remanded with directions to overrule said demurrer and for further proceedings consistent herewith.