#### Jas. T. Carter’s Admr. *v.*Josiah Brummell’s Exor.

Executors and Administrators — Executor De Son Tort.

It is well settled that an administrator of an administrator does not represent the first estate, and the only grounds upon which an action can he maintained is upon the allegation that the executor de son tort took possession of the first estate.

APPEAL EROM GREEN CIRCUIT COURT.

December 11, 1871.

Opinion oe the Court by

Judge Pryor:

David T. Baker was indebted to Josiab Brummell in the sum of four hundred dollars with interest, &e. Baker died and James T. Carter was appointed his Administrator, and took into his possession the goods and effects belonging to Baker’s estate. Carter the Administrator of Baker then died, and the present appellant, Thomas P. Hodges, was appointed his Administrator. Brummell, the creditor of Baker also died and John M. Brummell was left his Executor. Baker’s debt to Brummell never having been paid Brummell’s Executor (the present appellee), instituted his suit at law, against the appellant Thomas Hodges, Administrator of Carter, who was the Administrator of Baker, upon the indebtedness of Baker, to' his intestate. No defense was made to the action, and a judgment rendered against the appellant Hodges, Administrator of Carter, for four hundred dollars with interest *“to be levied of the estate of David Baker unadministered, which came to the hands of James T. Garter and in the hands of Garter's Administrator, the appellant.''*

On this judgment an execution issued and was returned no property found. Brummell’s Executor then filed the present petition against the appellant Hodges, as Administrator of Carter, alleging “that the appellant, as the Administrator of Carter, had received into his hands, the property and effects of David T. Baker, left by Carter, Baker’s Administrator, unadministered, and that he failed and refused to pay the judgment obtained at law, although he had assets sufficient to pay the same.

*618
      *GJielf,*James, *for appellant.*

Tbe appellant, Hodges, answered denying that any property or assets of Baker, deceased, ever came to his bands, and that be bad fully settled up Carter’s estate and distributed the assets between his widow and children. Tbe wrong complained of in this case is “that tbe Administrator of Carter failed to make a proper application of tbe assets of Baker that came to bis bands.” It is well settled that an administrator of an administrator does not represent tbe first intestate, and tbe only ground upon which this action can be maintained if at all, is upon tbe allegation, that Baker’s property and effects were taken possession of by tbe appellant, as tbe Administrator of Carter, and even then, we are inclined to tbe opinion, that be would be liable as executor de son tort, and not as Carter’s Administrator. Tbe judgment first obtained and now sought to be enforced directs tbe Administrator of Carter to pay tbe judgment out of tbe assets of Baker’s estate, and tbe present judgment directs it paid out of Carter’s estate. There is no proof in tbe record showing that any of Baker’s effects ever passed into tbe bands of Hodges, or that be took possession of them either in bis own right or as Administrator of Carter. If tbe proceeding in this case is based upon tbe idea of a devastavit by Hodges of Carter’s estate, it can avail appellee nothing, because, be has no judgment against Carter’s estate, and there is no allegation that such a judgment was bad, either vs. Carter or tbe Administrator of Carter; but tbe judgment itself shows that it is to be made out of Baker’s estate, and no part of this estate ever came to appellant’s bands. Tbe appellant has also made a .settlement and distribution of tbe whole of bis intestate’s effects "between bis widow and children and no right of action exists against him authorizing a personal judgment or a judgment as Administrator of Carter. Tbe judgment of tbe court below is reversed with directions to dismiss plaintiff’s petition.