#### James De Bard, et al. *v.*N. Dawson's Admr.

Descent and Distribution — Heirs—Actions Against Administrator.

Under provisions of sec. 10, cb. 40, Bev. St., an action cannot be maintained against tbe beirs of a decedent, upon a decree rendered against tbe administrator alone, but must be based upon tbe original liability of tbe decedent.

Pleading — Demurrer—Amended Petition — Insufficiency.

A defect in a petition, on a judgment against an administrator, that does not set up tbe original liability of tbe decedent, is not waived by a failure to demur to same. Tbe petition not stating these facts is a valid ground of reversal, whether objected to in tbe Court below or not.

Same — Sufficiency of Amended Petition — Descent and Distribution — Action.

A petition on a judgment against an administrator, in an equitable action against tbe beirs, set out the fact that an execution bad been issued upon tbe judgment against tbe administrator, and bad been returned nulla bona, and that said judgment remained wholly unpaid, *345but made no reference to the nature of the original liability of the intestate.' Held, insufficient to constitute a cause of action.

Same — Right of Contest.

The heirs of the decedent, not being concluded by the judgment against the administrator nor bound thereby, have the right to controvert the justice of the claim against their ancestor, and to enable them to do this, the same must be made the foundation of the action.

APPEAR EBOM CARTEE CIBCUIT OOUET.

October 4, 1870.

OPINION OF THE 0OUBT BY

JuDGE LlNDSAY:

Duncan, the administrator of Dawson, Having recovered a judgment at law against the administrator of George N. Davis,-' deceased, and being unable to collect the same by bis common law execution, instituted a suit in equity against tbe heirs at law of Davis making his judgment against the personal representative the foundation of the action against the heirs, this proceeding progressed to a judgment against all the adult heirs, and they prosecuted an appeal therefrom' to this court. And in January, 1858, said judgment was reversed, upon the ground that under the provisions of the 10th section of chapter 40 of the Bevised Statutes, an action could not be maintained against the heirs upon the decree rendered against the administrator alone, but must be based upon the original liability of the decedent. The cause was remanded with leave to the plaintiff to amend, and on the 9th day of April, 1858, he did file an amended petition, setting up the fact that an execution had been issued upon his judgment against the administrator and been returned *nulla bona,*and that said judgment remained wholly unpaid, but made mo reference whatever to the nature of the original liability of the intestate. The case lingered on the docket until April, 1868, without further pleading or evidence, when a second judgment was rendered against the heirs of Davis, and from that judgment they have appealed.

If the conclusions of this court as set out in their opinion in this case rendered in 1858, are correct, it is difficult to tell how the present judgment is to be sustained.

It is insisted by appellee that the proper move for the appel*346lants to bave taken advantage of tbe defect of tbe petition as amended, was by demurrer, and having failed to do so, such defect must be regarded as waived, but as tbe action could not be maintained upon tbe judgment against tbe administrator, and as tbe original liability was not set up, or even referred to, tbe petition as *amended*did not state facts constituting a cause of action, and this is a valid ground of reversal whether objected to in tbe court below or not. *Walters v. Chinn, 1st Metcalfe, 503.*

It is also claimed that tbe original petition does refer to tbe suit and judgment against tbe administrator, and that said suit with all tbe exhibits including tbe obligation of tbe decedent is on file in this action. But the sufficiency of tbe original petition was passed upon by this court when tbe first judgment was reversed, and tbe then rendered decree caDnot be disturbed.

The heirs of Davis not being concluded or in any manner bound by ihe judgment against tbe administrator, bave tbe right to controvert tbe justice of tbe claim against their ancestor, and to enable them to do this in tbe manner prescribed by law, the same must be made tbe foundation of tbe action, and until this is done no judgment can be rendered against them.

Dor tbe reasons herein set out tbe judgment is reversed, and tbe cause remanded with direction' for further proceedings not inconsistent with tbe principles embodied in this opinion.