granted to those having the greatest interest in the estate of the first intestate." Thus where the next of kin entitled to the estate of the first intestate dies before administration de bonis non is granted, the representative of the next of kin who succeeds to the original estate, should likewise be entitled to administration de bonis non of such estate. But the right of a representative to letters should not precede that of a person originally entitled to a distributive share of the estate of the first intestate.8

Where the administration to be completed is of the estate of a testate decedent, except in the instance above mentioned of the right of the executor of the deceased executor to represent the first testator, administration de bonis non must issue; and the general rule is that letters will be granted to the person entitled thereto according to the principles hereinbefore set forth regarding the right to letters of administration with the will annexed.9

7 Goods of Gill, 1 Hagg. 341, 344, by Sir John Nicholl; Savage v. Blythe, 2 Hagg. Appendix 150; Almes v. Almes, 2 Hagg. Appendix 155.

Where the statute declares that the right of administration follows the right of estate, the husband's next of kin are entitled to the administration.-Bryan v. Rooks, 25 Ga. 622, 71 Am. Dec. 194.

Where the statute provides for letters de bonis non at the discretion of the court and gives preference to the person entitled, if he

actually applies for the same, this does not mean that the court may capriciously appoint whomsoever it pleases, whenever it pleases and without notice or opportunity to be heard by those entitled to make application. Such a statute necessarily imports that the person entitled to letters shall have notice and a day in court to make such application.-Thomas v. Knighton, 23 Md. 318, 87 Am. Dec. 571.

82 Hagg. Appendix 157; Goods of Middleton, 2 Hagg. 60, 61. 9 See §§ 1228-1236.

1

§ 1250. Renunciation of Right to Letters Can Not Be Revoked. While the law may give a person the right to administration de bonis non, it does not make it incumbent upon him to exercise it; he may renounce his right and such renunciation filed in court can not be revoked.10 Where the surviving wife was appointed executrix and declined to qualify, but agreed that administration with the will annexed should be granted to her daughter, reserving the right to qualify after her daughter's death, it was held that the renunciation was absolute and could not be retracted after the demise of her daughter. The court further said that the appointment as executrix in the will did not give her any preferable right to the administration de bonis non with the will annexed.11

§ 1251. Powers and Duties of Administrator De Bonis Non.

By the English law as administered in the ecclesiastical courts, and which still prevails except as modified by statute, an administrator who is removed or the representative of a deceased executor or administrator who has died intestate is required to account directly to persons beneficially interested in the estate, distributees, next of kin, or creditors, and such accounting can be enforced in the court having probate jurisdiction.12 An administrator de bonis non can administer only the goods, chattels and credits of the decedent which have not been administered by his predecessor, and is entitled only

10 Stocksdale v. Conaway, 14 Md. 99, 74 Am. Dec. 515.

Compare: Thomas v. Knighton, 23 Md. 318, 87 Am. Dec. 571.

As to acceptance or renunciation of office, see §§ 1223-1226.

III Com. on Wills-7

11 Thornton v. Winston, 4 Leigh (Va.) 152.

12 Beall v. New Mexico, 16 Wall. (U. S.) 535, 21 L. Ed. 292; Waring v. Lewis, 53 Ala. 628.

to the goods and chattels which remain in their original form. Money received by the first executor or administrator in his character as such is regarded as remaining in specie if kept separate and distinct, but if intermingled with the money of the executor or administrator, it is considered as having been administered.18

If the first executor or administrator receives assets of the estate and converts them into another form or

wastes them, such assets are considered as having been administered and no right in relation thereto passes to the administrator de bonis non. He can not sue either the former executor or administrator, or his agent, or the person to whom the property or money so converted has been delivered, for the recovery of the same. The administrator de bonis non derives his title from the deceased and not from the former executor or administrator.14 And following this rule, the administrator de bonis non has no right of action against the sureties on the bond of the first executor or administrator for assets of the estates converted or wasted by him. The right of action in such cases is vested only in the distributees and legatees entitled to the property, or in the creditors of the decedent.15 If, however, the original executor or ad

14 Beall v. New Mexico, 16 Wall. (U. S.) 535, 12 L. Ed. 292; United States v. Walker, 109 U. S. 258, 27 L. Ed. 927; Wilson v. Arrick, 112 U. S. 83; 28 L. Ed. 617; Waring v. Lewis, 53 Ala. 628; Brice v. Taylor, 51 Ark. 75, 78, 9 S. W. 854; Waterman v. Dockray, 78 Me. 139, 141, 3 Atl. 49; Parker v. Stevens, 61 N. J. Eq. 163, 165, 47 Atl. 573; Roy v. Squire, 61 N. J. Eq. 182, 186, 48 Atl. 233; Smathers v. West Carolina Bank, 135 N. C. 410, 47 S. E. 893.

Compare: Conway v. Carter, 11 N. M. 419, 432, 68 Pac. 941, where, in suit against sureties of first administrator to recover proceeds of insurance policy, collected by him, all allegations were admitted and court rendered judgment on the pleadings.

15 Beall v. New Mexico, 16 Wall. (U. S.) 535, 12 L. Ed. 292; United States v. Walker, 109 U. S. 258, 27 L. Ed. 929; State v. Rottaken, 34 Ark. 144, 151; Warfield v. Brand's Admr., 13 Bush (76 Ky.) 77, 88; Potts v. Smith, 3 Rawle (Pa.) 361, 24 Am. Dec. 359; Collins v. Warren, 63 Tex. 311, 321.

By statute the administrator de bonis non has in some jurisdictions been authorized to sue his predecessor who has been removed from office. - Hanifan v. Needles, 108 Ill. 403, 407; Stewart v. Phenice, 65 Iowa 475, 478, 22 N. W. 636.

Sureties of former administrator may be sued within three years by administrator de bonis non.Davis v. Clark, 58 Kan, 454, 459, 49 Pac. 665.

ministrator fraudulently transfers assets of the estate to another, acting in collusion with such other under an agreement that such assets shall be retained for his own use, then such property will be considered in equity as unadministered and consequently to pass to the administrator de bonis non. In such a case the administrator de bonis non can resort to a court of equity to have the transfer set aside and to have the legal estate conveyed to himself.16 The same rule prevails where the transfer is void because of want of jurisdiction." But as to devastavit or waste committed by his predecessor, an administrator de bonis non has no right of action against his predecessor or his representatives, such right, independent of statute, being vested in the next of kin of the decedent, if intestate, whose estate is being administered, or, if testate, in those who take under his will.18 In many of the American states, however, this rule has been abrogated and the administrator de bonis non may maintain the action.19

16 Cubbidge v. Boatwright, 1 Russ. 549; Scott v. Tyler, 2 Dick. 712, 725, by Lord Thurlow; Swink's Admr. v. Snodgrass, 17 Ala. 653, 52 Am. Dec. 190; Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163.

17 Hopper v. Steele, 18 Ala. 828; Bragg v. Massie's Admr., 38 Ala. 89, 79 Am. Dec. 82.

18 Green v. Byrne, 46 Ark. 453; Deans v. Wilcoxon, 25 Fla. 980, 7 So. 163; Ormes' Estate v. Brown, 22 Ind. App. 569, 52 N. E. 1005; Karn's Admr. v. Seaton, 23 Ky. L. 101, 62 S. W. 737; Meservey v. Kalloch, 97 Me. 91, 53 Atl. 876;

State v. Fidelity etc. Co., 100 Md. 256, 108 Am. St. Rep. 410, 59 Atl. 735; Roy v. Squire, 61 N. J. Eq. 182, 48 Atl. 233; Probate Court v. Smith, 16 R. I. 444, 17 Atl. 56.

19 Eubank v. Clark, 78 Ala. 73; Goodwynne v. Bellerby, 116 Ga. 901, 43 S. E. 275; Bailey v. McAlpin, 122 Ga. 616, 50 S. E. 388; Ellyson v. Lord, 124 Iowa 125, 99 N. W. 582; Dunne v. American Surety Co., 34 Misc. Rep. (N. Y.) 584, 70 N. Y. Supp. 391; Estate of Herren (Gatch v. Simpson), 40 Ore. 90, 66 Pac. 688; Shackelford v. Runyan, 7 Humph. (26 Tenn.)