
    J. B. Thompson, Administrator de bonis non of Hance M'Culloch vs. James T. Buckner.
    Heard before Chancellor Harper, Coosawhatchie, February Terra, 1836.
    On the 2d' of August, 1816, administration was granted" to the defendant, James T. Buckner, of the' estate of Hance M'Culloch, then lately deceased, whose estate wag' appraised at more than $12,000. He continued in the administration until the — of July,' 1321, when his administration was revoked on the application of his sureties, in 1830, administration de bonis non, of Hance M'Cultoch’s estate, was committed to David C.- Campbell, who renounced in the same year ; and in December, 1833, administration de bonis non, was committed to the complainant. The bill is for an account of the estate of Hance M‘Oulloch, in the hands of the' defendant.
    ■ Defendant by his answer, admits the facts stated, with regard to the grant of the several administrations, and the revocation of his ówii. lie states, however, that lie paid off all the debts of the intestate and accounted before the Ordinary. He states that Hance M'Culloch, left only two children, or distributees, to wit: a son named Thomas B. M'Culloch, and a daughter named Elizabeth,who was the defendant’s wife ; that on the 4th March, 1816, the" said Thomas B, M'Culloch, by deed, assigned to the defendant, all-his interest in his father’s estate. Defendant claims that having paid off all the debts, and being himself entitled to the whole estate, in right of his wife,, and under Thomas M'Culloch, deceased,, he is not liable to account. If the case made by the answer, were sustained, there-could be no doubt that he would be entitled to a decree. The court would not do such a thing as to compel a defendí.-ant to account for an estate which he would be forthwith entitled to receive back.
    The execution of the deed of Thomas B. M'Culloch, was admitted, but evidence was offered to shew it to be fraudulent. Thi# testimony was objected to on the part of defendant, and the objection sustained, by the court. The transaction was a final admtnis-tration of the estate, so far as Thomas B’ MCulloeh was concerned. If it was a fraud on his creditors, the deed might still be good, as between the parties, and none but his creditors could impeach it. If it were obtained by a fraud practiced on Thomas Bt M’CulloCh himself, none but himself, or bis legal representative, could Call it in question. He is understood to be dead, but suppose he were living and did not think proper to impugn it, could the administrator de bonis non, avoid it on his behalf without his concur, rence ? It can make no difference that he is dead ; his legal representative stands in his stead, and is alone competent to litigate the validity of the deed. For the same reason, the will of Thomas B. M'Culloch, which was said to dispose of this pioperty, was rejected when offered. The executor of that will, if an executor were appointed, or if not, an administrator cum testamento annexe^ is the only proper person to sue. Evidence was also offered, of proceedings on a bill-in Equity by the wife of the defendant', against him for alimony, and a decree that her portion of her father’s estate,should be settled on her to her separate use. This also was objected. to,, and the objection sustained. The object of the present suit was stated to be-for her benefit, and that she might be satisfied with her decree. But this is plainly unnecessary and contrary to principle. If any other distributee had obtained a decree- here, could, the administrator de bonis non, call the former administrator to account for the benefit of that distributee ? What difference does it make that the distributee was the administrator’s wife? If the decree was that defeudant should settle the estate on her, it is implied that he shall account first. What forbids her to enforce that decree, or if there be any defect iu the directions of the decree, they may be 'supplied by proceedings to have it carried into effect. Then evidence was offered to shew debts existing, against the estate of Hanee M'Culloch, on account of which the administrator de bonis non, is supposed to sue. This consisted of certificates from-the clerk’s office of Colleton and Beaufort districts, of judgments of H-ance M‘Culloch himself, and against the defendant as his administrator, standing apparently unsatisfied on the record. It was objected that these ought to be regarded as satisfied from lapse of timo, and so I should think. The latest judgment against Hance M'Culloch, was near twenty.two years before the filing of the bill, and the- latest against the- defendant as administrate»!:, near nineteen years, and these are circumstances to corroborate the presumption. There are various reasons why the bill could not be sustained on the score of the judgments, but a conclusive one is, that the judgment creditors are not before the court, nor claiming any thing upoa them. If they were, they would be required to make affidavits ¡that their judgments were unsatisfied before they would be received. The complainant is a trustee on their behalf. In the case of Stoney vs. Shultz, decided by the Court of Appeals at its last silting at Columbia, the assignee of an insolvent debtor, when creditors •bad been advertised for, objected to the distribution of the fund among the creditors who were .before the-court, on the ground of such judgments standing apparently unsatisfied on the record. The court held, that though a trustee for all creditors, it. was dot his duty to go in search of creditors, and that they could take notice of n© creditors, hut those who had presented .their demands duly ■verified by affidavit. By parity of reason, if the estate were in the hands of the complainant, and distributees were suei.-ig him, he could not claim to retain a fund to meet those judgments ; he could pot do so at any time after the expiration of the year and day. Creditors who had not within that time rendered tbeir demands, would be left to their remedies of pursuing the estate in the hands of the distributees. Shall he be permitted to recover against defendant, that he may hold the fund, upon a surmise that these claim* snay he one day brought forward and established.
    It is ordered and decreed, that the bill be dismissed with costs.
    WILLIAM HARPER.
    
      Grounds of Appeal.
    
    1. Because the administrator of Hance M'Culloch, did not finish and complete his duty as such — inasmuch as he did not pay the debts and cause distribution to be made, but held the estate unad-ministered, until the administration was revoked, and thereby became liable to account to the administrator de bonis non.
    
    
      2. Because the decree of the Court of Equity prevented the attaching of the marital rights, and until a final account, the possession, by the administrator of M‘Culloch, was not sufficient to transfer his wife’s share.
    3. Because the mere allegation of a conveyance from the other distributee, was not a sufficient accounting for his share.
    4. Because the Chancellor, instead of dismissing the bill, should .«n his own principles, have retained the bill and directed that the legal representative of Thomas B. M'Culioch, and the judgment creditors of Hance McCulloch, be made parties.
    5. Because there was no proof of any account before the Ordinary ; on the contrary, his accounts shew a large inventory and only some partial payments, and no final account was proved or ' pretended.
    N. B. The decree is mistaken in the statement that the execution of the deed of Thomas B. M'Culloch was admitted. It was admitted that such a deed has been set up and alleged, and evj* dence was to be introduced to shew it void.
    JB. F. HUNT, Appellant’s Solicitor-.
    
   Chancellor Haupbb.

delivered the opinion oí the court.

The mistake which is supposed to have occurred, with respect to the admission of the fact, of the execution of Thomas B. Culloch’s deed, if it be a mistake, is one which cannot be corrected now. My notss of the evidence were sent with the decree, and are not now in my possession. The notes were before me, however, when the decree was drawn, and I am satisfied, that I must have so taken it down, and so understood it at the time. It is singular that evidence, should have been offered to shew the deed to be fraudulent, before its execution was established.

With respect to the debts of the estate of Hance M'CuIIoch, which are said to remain unpaid, I may remark, in addition to what is said in the decree, that the existence of sueh debts is not alleged by the bill, and consequently, the defendant could not have been prepared to disprove them. If after the expiration of the year, during which he had received no notice of the debts, the administrator had paid over the estate to the distributees, he might plead, that he had fully administered, as against creditors, or an admi, nistrator de bonis non. Creditors might, perhaps, pursue the estate in the hands of the distributees; but an administrator de bo-nis non, would be required to prove, not only that debts existed, but that the administrator had notice of them within the year, before he eould require an account. In this case, that has been done, which, according to the view I have taken, is equivalent to a full administration. If the creditors themselves might pursue the estate in the hands of the defendant, or his wife, yet the administrator de bonis non, even if he has established the existence of the debts, has certainly not shewn that the defendant had notice of them within the year.

I think that Ordinaries, ought in no case, to grant administration unless to the kindred or creditors, or upon the application of the kindred or creditors. The Statutes 31, E. Y. C., 11 and 21, Hy. 8, 65, only provides for the granting of administration to the kindred, &c. according to their propinquity. See Toll. Ex. 82, 83. Administration is also committed to creditors ; but when there are neither kindred nor creditors, the Ordinary is only authorized to grant administration ad colligenda bona — for the sole purpose of collecting and preserving the goods. When kindred applies, the Ordinary must have evidence that-they are-kindred," entitled to the-administration. And when creditors apply, they ought to verify the existence of their demands, not only by the production of their evidence? of debt, but by their pwji oaths. In this case, it is plain the administration was not granted on the application of creditors. It is probable that it was granted on the application of the defend? pnt’s wife. But as to her, as I have said, even if she were other* wise entitled to it, the estate has been fully administered by the decree in her favor.

Hunt, for motion.

Bailey, contra.

Filed 21st March, 1837.

If the decree in favor of the wife, is to have no validity or effect whatever, then it cannot stand in the way of the husband’s marital rights attaching. If it is to have any validity or effect — if it be an authoritative determination of her right to the estate derived from her father, then it is certain that it may be enforced, and carried into execution by a proper proceeding on her part. Directions may be supplied, if they are deficient, and an account had, if an account be needed. But to decree an account and payment pf the estate to the present complainant, would be, in effect, to decree to him that which has already been decreed to her.

With respect to the suggestion in relation to making additional parties, it may be observed, that if the complainant had any rights, to the decision of which, those parties were necessary, such a Course would be proper. But'he has no rights, nor any standing in court, and if such an order were made, it would not be to amend the bill, but to make a new case, to which he would be an improper pnd unnecessary party.

The decree is affirmed,

WILLIAM HARPER,

I concur,

DAVID JOHNSON,

I do not concur.

J. JOHNSTON,  