Gregory, Administrator de bonis non, vs. Harrison.-Statement of Case.

was received by a third person. See, also, Rann v. Hughes, 7 Term Reports, 350.

For these reasons, the court is of opinion that the judgment of the Circuit Court, sustaining the demurrer to tenth, eleventh and twelfth pleas, was erroneous.

Let the judgment of the court below be reversed.

A. E. GREGORY, ADMINISTRATOR DE BONIS NON OF THE ESTATE, OF J. M. NIXON, DECEASED, APPELLANT, V. ROBERT HARRISON, RESPONDENT.

An administrator de bonis non cannot call to account a removed executor, and charge him with a devastavit, as to the goods and chattels of his testator which have come to his hands.

The title of an executor in the effects of his testator is derived from the will, and exists independently of the letters testamentary; and so far as it relates to money collected, and goods reduced into possession and converted cannot be divested by the revocation of the letters testamentary. The revotion of letters testamentary, and the appointment of another administrator, can only have relation to the goods not reduced into possession, and to choses in action not recovered. As to goods reduced to possession, a removed executor holds them-not as his own, but as trustee for the creditors, legatees and distributees of his testator, and to them he is accountable. The administrator of a deceased executor occupies precisely the same position, and is a trustee for the same persons, as to the goods or effects reduced to the possession of the executor.

The commission of an administrator de bonis non gives him no warrant to demand from a removed executor, or administrator, any other goods or effects than those which were the goods and chattels of the testator, or intestate, at the time of his death.

An administrator is correctly defined to be a "change, alteration or conversion" of the goods of the testator, or intestate, and by this is meant a change in the property,not a change in specie. An administrator de bonis non takes possession of the goods and chattels of the testator, or intestate, which re

Gregory, Administrator de bonis non, vs. Harrison.-Argument of Counsel.

main in specie and unadministered. He is appointed to finish what is left unfinished, and for no other purpose.

Creditors have a right to sue the representative of a deceased executor,or a removed executor, for a debt of the original testator, without having first obtained a judgment against the executor in his life time,and heirs, legatees and distributees can assert their rights against the same persons.

This case was decided in the court below, by the Hon. THOMAS BALZELL, Judge of the Middle Circuit, sitting in and for the county of Gadsden, on the 20th of November, A. D., 1850. The demurrer of defendant to complainant's bill was sustained, and the bill dismissed, and from this decision, an appeal was taken.

The case is fully stated in the opinion delivered by the court, affirming the opinon of the court below.

The main, if not the only, question in the case presented for the decision of the court is, whether an administrator de bonis non is entitled, by virtue of his commission as such, to call a removed executor to account, and charge him with a depostavit, as to the goods and chattels of his testator which have come to his hands.

Dupont, for Appellant, argued—

That there is nothing in the English books, of a positive character, opposed to the exercise of such authority by an administrator de bonis non. That the definition given of an administration, viz: "a change, alteration, or conversion," as understood and applied by those who contend for a contrary doctrine, is not correct—for if so, then it would follow, that, in a contest between the representative of a deceased executor and the administrator de bonis non, for the possession of a security or evidence of debt, taken by the deceased executor for any demand due the estate of his testator, the possession and control of the same would not be awarded to the administrator de bonis non; and yet the contrary has been held. See 1 Barnewall and Creswell, 150.

Gregory, Administrator de bonis non, vs. Harrison.-Argument of Counsel.

The negative of this proposition which appellant contends for, would leave one class of creditors without any remedy for the recovery of their demands-as, in the case of an estate wholly administered, or converted, before they had time to establish their demands by judgment. See Judge Coalter's dissenting opinion, in 5th Randolph, 97 to 108.

A better definition of the term "administered" is this-the faithful performance by the executor, or administrator, of the duties required of him by law." Vide Williams on Executors, 205, 207. See, also, as to the authority of an administrator de bonis non, 1 Wiliams on Executors, 362. 1 Haggard, 139.

This is not the case of an administrator de bonis non, but of a substantial adminstrator; and the reasons which apply in favor of the exercise of the right claimed in the case of the former, apply, with more cogency, to the case of an administrator of the latter character. The statute of this State provides that, "in the case of the death of any administrator, or of the revocation of his letters of administration, the Judge of Probate shall grant new letters to the person applying, &c.," (not letters de bonis non,) evidently intending to give them a relation back to the date of the original letters. Thompson's Digest, 198, 199.

As to the operation and effect of the order of the Judge, removing and dismissing the executor in this case, see 1st Florida Reports, 127. 1st Howard's Supreme Court Reports, 286. 1st Toller on Executors, 131.

If the administrator de bonis non, or the substituted administrator, has not the authority contended for, who has? The heir cannot maintain an action at law, 13 Wendell, 456; nor can he sue in equity, 4 Paige, 47, 51. 4 Littell, 264. Neither the heir nor distributee can sue, without first assuming the character of administrator.

Gregory, Administrator de bonis non, vs. Harrison.-Argument of Counsel.

Erskine, for Respondent.

An administrator de bonis non cannot bring an action at law, nor a suit in equity, for an account, against a removed executor, 1st Bacon's Abridgment, Accompt (c.) No powers are transmitted from the former executor to the administrator de bonis non, who is but the representative of the unadministered estate. Story's Equity Pleadings, sections 382, 619. 1st Kelly, 80, 2d Kelly, 428. 5th B. Monroe, 490. 5th Randolph, 51. 3d Kelly, 256.

Gregory, being merely the officer of the court of Ordinary, appointed to finish a business began by another, he is only entitled to all the property which was of Nixon, the testator at the time of his death, which remained in specie, and was not administered by Harrison, the removed executor. 4th Bacon's Abridgement, 24. 5th Randolph, 51 to 126. 1st Gill and Johnson, 270. 7th Missouri Reports, 471. 11th Alabama Reports, 872.

An executor is a trustee, but there is no trust affecting the assets themselves. The administrator de bonis non cannot follow the assets disposed of by the executor, or sue for their value, because the property vests absolutely in the executor, on the death of his testator. If it wastes it, he, or his representatives, are responsible directly to creditors, and others entitled, but not to the administrator de bonis non. 2d Williams Executors, 670, 672. 1st Howard's Mississippi Reports, 92. 8th Blackford, 168.

But it is contended that, if this doctrine be correct, then creditors, who have failed to establish their debts, are without remedy. It is answered, that an action at law may be maintained against the executor of an executor who has wasted the estate. 1st Saunders, 219, e. And since the statutes, 30th Car. 2, c 7, and 4 and 5 of William and Mary, c 24, there is no reason why an action cannot also be sustained against the administrator of an executor, who has committed a devastavit, without having first obtained

Gregory, Administrator de bonis non, vs. Harrison.-Opinion of Court.

judgment against the devastating executor. At any rate, a removed executor or administrator is directly and personally liable, and may be fixed with the debt. 11th Viner's Abridgement, 119.

Again: it is said that the appellant is a "substituted administrator." This is true; but for what, and whose substitute is he? He is the substitute of the ordinary, to administer what is left unadministered of the estate of Nixon. This is the extent of his authority; and his letters show that he was appointed administrator de bonis non cum testamento annexo, and he has, therefore, incurred the obligations, and acquired the rights of an administrator of that character. As to the authority relied on by appellant's counsel 1st Haggard, 139, it has been questioned, if not overruled, by the Supreme Court of Alabama. See 6th Alabama Reports, new series, 36. See also, 1st Howard, (Mississippi,) 89. 8th Blackford, 567. 9th Cowen, 320. 1st Richardson's South Carolina Reports, 123. 5th Johnson's Chancery Reports, 388, 409.

ANDERSON, Chief Justice, delivered the opinion of the

court.

This case is brought up by an appeal from Gadsden Circuit Court.

A bill in equity was there filed by A. E. Gregory, as administrator de bonis non administratis of the estate of James M. Nixon, deceased, the purpose of which bill was to call Robert L. Harrison, former executor of Nixon, but who had been removed or dismissed from his executorship by the Probate Court, upon the complaint of some of the parties in interest, as provided for in our statutes. The bill charges a devastavit, and prays "that an account be taken, &c., and that what may be found to be due by the said defendant, be decreed to be paid by the said defendant to complainant, as administrator as aforesaid."