
    Daniel Coney, Judge, &c., versus Obadiah C. Williams and Others.
    Where the administrator of an insolvent estate unduly neglects to settle the account of his administration, &c., an action lies on the administration bond for the benefit of a creditor, besides the remedy against the proper estate of the administrator.
    Debt on an administration bond. The defendants, in tneir plea in bar, set forth the condition in hcec verba, * which is in the form prescribed by the statute, and then they aver a performance generally.
    The plaintiff replies, that one William Blackstone, for whose use this action is brought, recovered a judgment against the administrators, which they were requested to pay, but have never paid, although they had in their hands sufficient assets for that purpose.
    The defendants rejoin, protesting that the administrators had not sufficient assets, &c.; that pending the suit of Blackstone against them, the estate of their intestate having been represented insolvent, commissioners of insolvency were duly appointed and sworn, who duly returned a list of claims as allowed by them, in which list Blackstone’s demand was not included; that Blackstone, after recovering his judgment, and before the commencement of this action presented a copy of the judgment to the judge of probate, to be put on file and recorded with the claims against the estate of the said intestate, which was filed and recorded accordingly ; that the judge of probate has never made any order of distribution of said estate; and that Blackstone has never demanded of the administrators payment of his said judgment, or of his dividend.
    The plaintiff, in his surrejoinder, says, that the administrators neglected, for more than six months after the final return of the commissioners, to exhibit and settle their account of administration with the judge of probate, without being allowed a further time therefor by the judge: by reason whereof the estate could not be proportioned among the creditors, agreeably to the statute in such case provided.
    The defendants, in their rebutter, say, that pending the commission of insolvency, one Elnathan Sherwin, as administrator of the estate of one Ebenezer Bacon, deceased, presented to the said commissioners a claim against the estate of their intestate, upon which the commissioners allowed the sum of 1734 dollars 20 cents; and the administrators, being dissatisfied with the said allowanee, gave * notice thereof to the judge of probate, and to the said Sherwin, within twenty days from the return of the commissioners; whereupon Sherwin sued the administrators upon h's said claim, and finally (after more than three years from the return of the commissioners) recovered judgment for 313 dollars.
    The plaintiff, in a surrebutter, avers that the administrators have never settled the account of their administration, &c., although more than six months have elapsed, &c.
    To this there is a general demurrer and joinder.
    
      Boutelle,
    
    for the defendants, contended that the pleadings showed no breach of the condition of the bond. Blackstone, for whose benefit this action is brought, by filing his claim with the commissioners, having elected to consider the estate as insolvent, is bound to pursue his claim accordingly. Now, the statute  for regulating the proceedings on probate bonds, when the estate is insolvent, requires the creditor to produce a copy of the order of distribution, and also to show that a demand has been made of the administrator for his particular dividend.
    The administrators are not personally liable, until upon the return of an execution that they have refused to satisfy it, which is by statute deemed waste ; whereupon a scire facias lies, upon which judgment may be rendered against them de bonis propriis. 
       In this case, no demand by Blackstone, after recovering his judgment, was made on the administrators; nor has he pursued his remedy on that judgment, so as to entitle himself to an action personally against the administrators.
    
      Wilde for the plaintiff.
    
      
      
        Stat. 1786, c. 55.
    
    
      
      
        Stat. 1794, c. 5.
    
   Sewall, J.

The replication in this case shows substántially a breach of the condition of the bond, sued in the name of the judge of probate for the benefit of William Blackstone; and therefore, if not traversed or excused, the plaintiff is entitled to judgment; the defendant’s plea of a full performance of the condition being falsified. The breach is not so formally averred as it might be; not being *a direct assignment of a breach as applied to the words of the condition.

The words of the condition, t« which the breach assigned applies, are — “ that the goods, &c., of the deceased, at the time of his death, or which at any time after come to the hands and possession of the said administrators, &c., they do well and truly administer,” &c. The defendants plead a full performance, in all things, of the condition of the bond. To this the plaintiff replies, that one William Blackstone, for whose use the bond is sued, having recovered a judgment against the administrators, for a debt of the deceased, demanded payment of the same; yet they had never paid it, &c. This may be considered as an averment of an unfaithful administration in the particular specified.

The non-payment of a debt is not a breach of an administration bond, as taken in England by virtue of the statute of Car. 2; and the condition of an administration bond, as taken by the judge of probate with us, is in the same words. But by the statute directing the forms of proceedings in suits on probate bonds, the neglect of an administrator to pay the debts of the deceased is recognized as one of the cases for which an administration bond may be put in suit for the benefit of a creditor, after his demand has been ascertained by a judgment of Court, and payment demanded of the administrator.

Whatever may be the construction in England, it must be considered as settled with us, and so is the practice, that the nonpayment of a debt, after it has been ascertained by a judgment of Court or by commissioners, is a breach of the condition of an administration bond, as an unfaithful administration. And upon the whole, we are of opinion that the person for whose benefit the bond is sued, in this case, has shown in the replication a sufficient title to this action, if the neglect of payment by the administrators is not excused.

The excuse offered on the part of the administrators is a representation of insolvency, previous to the suit by Blackstone, * and1 his judgment recovered thereon, and a report by the commissioners. But there is no averment that the estate of the deceased had been, in consequence, and upon an adjustment of an account, decreed to be insolvent. The judgment recovered by Blackstone was subsequent to the representation of insolvency, and to the report of the commissioners. This must have been rendered in a suit commenced in the lifetime of the intestate, or soon after administration was granted, and before the representation of insolvency. And the certificate of the judgment returned to the probate office, and inserted with the list of claims, was in the due course of proceedings after a representation of insol vency; and had a decree of insolvency been finally obtained, the remedy for Blackstone would have been good only for his dividend. But in the progress of these protracted pleadings, it appears that the administrators, by neglecting to settle their account in the Court of Probate, and to pursue their administration to a decree of insolvency, have come within the predicament described in the statute of 1794, c. 5, respecting insolvent estates.

More than six months have elapsed since the report by the commissioners. Admitting a legal delay to have arisen by the suit and controversy upon the contested claim of one of the creditors, yet • several years had passed after that controversy was determined, before this action was commenced. This is a case, therefore, where a creditor may proceed, and is entitled to maintain any action commenced before the representation of insolvency, or afterwards, to the same effect as if no proceedings as upon an insolvent estate had been had.

This is not the case of a suit pursued with the purpose of having a remedy against the effects and persons of the administrators themselves, to which the argument of the defendants’ counsel applies. The creditor is,'by the additional statute just referred to, specially entitled to that remedy; but he is not restricted to it. The provision is not exclusive of any other legal remedy. And the recourse to * the administration bond remains open to the judgment creditor, notwithstanding the proceed-

ings under the commission of insolvency, as soon as these have been voluntarily suspended for more than six months after a report by the commissioners. The debts of the deceased are then ascertained ; and a voluntary neglect of an administrator to adjust his accounts, and his continued refusal to pay his debts, is an unfaithful administration, and a breach of the condition of his bond.

Surrebutter adjudged good. 
      
       1 Salk. 315, 316. — Lutw. 882, Archbishop of Canterbury vs. Willis.
      
     
      
      1 Mass. Rep 234, Foster vs. Abbott.
      
     
      
      
        a) [ The People vs. Dunlap, 13 J. R. 437.- Ed.]
     