
    Prosser, Judge, &c., v. Yerby’s Executrix.
    An administrator de bonis non cannot put the bonds of his predecessor in suit for his benefit, except for property remaining in specie unadministered in his hands, or in the hands of his representatives, and which, upon application, is refused to be delivered up.
    The bond which is required from an executor or administrator, is intended as an indemnity against mal-administration, to those interested in the estate, either as legatees, distributees, or creditors, and none other.
    A party who puts the bond of an administrator in suit, for his benefit, must bring himself within the privilege given by the statute, and must show that he has an interest, and the extent of that interest. An administrator de bonis non can have no interest in a recovery for mal-administration, nor is he one of the persons to whom the privilege of putting the bond in suit is given; the law only contemplates on his part a due administration of the assets not already administered.
    When it appears from an inventory of an administrator, that he has returned and given an account of a specific sum of money on hand, “the goods and chattels and credits of his intestate,” which he has failed to pay over, the administrator’s bond may be put in suit for the benefit of a legatee, distributee, or creditor, but not for the benefit of the administrator de bonis non, the act of accounting for the money in the inventory being an act of administration, and the failure to pay over, mal-administration.
    DAVID DAVIS, administrator de bonis non of Henry Hunter deceased, commenced an action of debt in the circuit court for Wilkinson county, in the name of Thomas H. Prosser, judge of probate, for his use, against Elizabeth Yerby, executrix of the last will and testament of William Yerby, deceased. A declaration was filed against the said Elizabeth Yerby, executrix as aforesaid, upon a bond given by the testator as the administrator of all and singular the goods and chattels, rights and credits of said Henry Hunter, deceased, in the usual form, in which the following breaches of said bond were assigned, viz:
    1. “That the said Wm. Yerby did not make a true and perfect inventory of all the goods and chattels and credits of the said Henry Hunter, deceased, which came to the hands of him the said William Yerby as administrator aforesaid, in this, to wit: the said Wm. Yerby, as administrator aforesaid, failed to make an inventory of fifteen bales of cotton, weighing five thousand and fifty-five pounds net, and worth five hundred and fifty-six dollars, of the goods and chattels of the deceased.”
    “ 2. That the said Wm. Yerby did not well and truly administer the goods, chattels and credits of said Henry Hunter, deceased, according to law in this, to wit: that the said William Yerby, as administrator as aforesaid, sold a large quantity of goods and chattels to one Joseph Hunter, to wit: to the value of three thousand seven hundred and twelve dollars of the goods and chattels of said deceased, without requiring any security from the said Joseph Hunter, by reason whereof the said goods and the proceeds thereof were entirely lost to the said estate of said Henry Hunter, deceased; and also in this, to wit: the said Wm. Yerby, as administrator, sold another large quantity of goods and chattels of the said deceased .to one William Hunter, to wit: to the value of seventeen hundred and seventy-seven dollars; and he, the said Wm. Yerby, entirely .failed to take good and sufficient security according to law, by reason whereof the said goods and chattels, and the proceeds thereof, were entirely lost to the said estate.”
    3. “ That a large sum of money, to wit: the sum of eight thousand dollars, the residue of the goods and chattels and credits of the said Henry Hunter, deceased, was .found rendered upon the account of the said William Yerby, administrator as aforesaid, which the said Wm. Yerby in his lifetime did not pay or deliver, nor hath any other person for him, since his death, paid or delivered the sum unto such person or persons as are by law entitled to .receive the same.”
    The defendant, by her attorney, demurred to the plaintiff’s declaration, and assigned for special causes,
    1. “ There are no breaches assigned in plaintiff’s declaration of which said David Davis, as administrator de bonis non, for whom suit is brought, can take advantage, or in which he is in any manner interested.”
    
      2. “ It is not alleged in the declaration, that any of the property, or estate, remained in the hands of the said William Yerby, unadministered.”
    • 3. “ It is not alleged that the cotton, or other personal property which is said not to have been inventoried, was of the goods of Henry Hunter, deceased.”
    The court below, upon argument, sustained the demurrer, and gave judgment that the plaintiff take nothing by his bill, &c. From this judgment an appeal was prosecuted.
    Boyd, for appellee.
    The substantial ground of defence to this action is that set forth in the first assignment of demurrer. The administration bond is intended solely to protect those who may be injured by breaches of its conditions. Revised Code, s. 33 and 36, Probate Article.
    It seems clear that no ingenuity of language, or subtlety of pleading can set forth a breach of such a bond, so as to show an injury to the administrator de bonis non. The moment the breach of the administration bond is committed, a right of action accrues in favor of- the distributees, creditors, &c. &c. The administrator de bonis non is not, then, in esse, and can have nothing to do with the acts of his predecessors,- he is only concerned in the specific things which have been left.unaffected by any act whatever: his bond and oath only require him to administer what remains un-administered. Revised Code, s. 59 and 45, Probate Article.
    He must seek the identical property of the first intestate, which remains unchanged, and dispose of it as his predecessor should have done. This is his sole duty. The authorities to this effect are numerous and direct. Bacon’s Abridgment, Executor and Administrator, B. 3. — 2; 3 Randolph’s Reports, 287, 289, 290, 294, 296, 299; 5 Randolph’s Reports, 51; 8 Monroe, 20; 4 Bibb, 14; Toller on Executors, edition 1829, p. 450, and note 1 p. 243, 116; 10 American Jurist, 315, (citing Gill & Johnson, 270;) also 1 Starkie on Evidence, 192, 193, note 1; 4 Marshall’s Reports, 613; 9 Cowen, 329; 8 Cowen, 344, 345.
    It is clear, then, that an administrator de bonis non can seek nothing but what the first intestate might have held, or did hold in actual possession, and what the preceding administrator might have administered but neglected to administer. Now the breaches of an administration bond cannot be assigned so as to claim any specific thing, but only general damages, or rather the penalty of the bond, to be discharged by the payment of whatever maybe adjudged to be due. On the judgment, a general execution and not a, distringas issues. Farther, “the moneys received upon such bond shall be applied towards making good the damages sustained by not performing the condition thereof, in such manner as the orphans’ court by their sentence or decree shall direct; Revised Code, p. 44, s. 58; which shows that the recovery is not specific.
    
    In a pretty thorough examination of authorities I have discovered but a single case where a suit was sustained by an administrator de bonis non, on the administrator’s bond of his predecessor; and that case was, where the remedy was given by statute (as it is by the 85th section of our probate article,) in a solitary instance, under the order of the judge of probate. In the case alluded to, the condition of the bond sued on contained this provision: “and all the rest or residue of the said goods and chattels, rights and 1 credits which shall be found remaining upon the said administrator’s account, (the same being first examined and allowed by the judgq, &c. &c.,) shall deliver and pay to such persons as the said judge, by his decree, shall limit and appoint.”
    It appeared that the administrator of the first intestate settled the account of his intestate and had it “ examined and allowed;” he then in addition reported a balance due the administrator de bonis non, and the judge of probate, “by his decree,” ‘appointed’ it to be paid to the administrator de bonis non. On this decree and to- recover the amount of it, an action was brought by the administrator de bonis non on the administration bond of his intestate, and against his administrator. The -action was sustained under that statute, and properly, as the action given bn our statutory bond would doubtless lie under the S5th section already referred to. But independent of some statutory provision, no such action can be found in the law books.
    Our statutory provisions in reference to the breaches assigned in the defendant’s declaration will confirm the opinion to be deduced from the authorities cited. As to the inventory, sec. 71, 75, 55 of Probate Articles show for whose benefit it is intended, who can be injured by a neglect to exhibit it, and the remedy for such neglect.
    As to the taking of security on the sale, &c., this was waste, and distributees, legatees, creditors, &c. are alone interested in it. The injury to them was committed and their remedies accrued instantly, on failure to take sufficient security. Sec. 91, 92, 127, 71, 103, Probate Articles.
    This breach shows also an administration, though bad. As to paying the residuees, the condition of the bond, the Revised Code, 44, requires this to be paid to those entitled by law, after it has been examined and allowed. No one but a distributee can be injured by such breach; of course no one else can have a remedy. This breach also shows an administration; the very return in his account rendered him and his securities liable to a distributee for the amount on his bond. Again, it is not alleged that any party was entitled by law, nor that any property- remained in specie unadministered, but that only a balance on the account (which is necessarily composed of sperate and desperate debts,) was not paid, &c. All these would be fatal objections against the breach if a distributee had brought this suit, much more in the present case. As to the office bond of an executor or administrator, it is never given to protect his successors in office; so whenever it has been thought advisable to allow such successor to enforce the remedy, for any breach of such bond for the benefit of all parties interested, the power has-been expressly given by statute. S. 32, p. 36, Revised Code. Page 40, Revised Code, s. 42, shows a strong instance to substantiate this rule. The collector mentioned'in that section who is not required to administer what he collects, (s. 39,) and who having “ goods and chattels” in his hands, stands of course in the same relation to a subsequent administrator, or any third person, who might be in possession of the same goods, &c., could not be sued by such administrator, on his bond, without a special provision.
    In fine, the great object of preventing a circuity of action is carefully guarded by the authorities and statutory provisions cited. The administrator de bonis non is to collect in the outstanding unadministered assets of all kinds and descriptions, while the creditors, legatees, distributees, &c., are all left to seek their separate and appropriate remedies against the personal representatives of any previous administrator, who may have injured them, by his malfeasance or misfeasance in office. The decision of the court below, in this case, is in pursuance of these principles, and it is hoped will be sustained.
   Mr. Chief Justice Shajucey

delivered the opinion of the court.

This action was brought in the circuit court of Wilkinson county, on an administration bond in favor of the judge of probate, for the use of David Davis, administrator de bonis non, against the defendant, whose testator was the original administrator of Hunter. Three breaches are assigned. First, that the administrator did not make an inventory as required by law; secondly, that he did not administer according to law, in selling property without taking good security; and, thirdly, that a large sum of money was found due on account, and he did not pay it over.

It is alleged in this breach, that the money was the goods and chattels and credits of the said Henry Hunter.” To the declaration the defendant demurred, and assigned for causes, First, that the administrator de bonis non cannot avail himself of the breaches assigned; secondly, that the breach does not allege that the cotton uninventoried was the goods and chattels of Hunter; thirdly, it is not alleged that any property of Hunter remained unadministered in the hands of the first administrator. The point that is principally relied on in argument by the defendant’s counsel, is, that an administrator de bonis non cannot sue his predecessor except for property remaining in specie unadmin-istered, and it will only be necessary to decide this point.

The law requires of every executor and administrator bond and security for the faithful performance of his duty. The bond is intended as an indemnity to those interested in the estate, either as legatees, distributees, or creditors, and for none others. Every person thus interested in the estate may have the bond put in suit, and his recovery is according to the injury received. He cannot recover without showing his interest and the extent of it. The right of action on the bond is given by statute, and any person suing on it must bring himself within the privilege given by the statute. The administrator de bonis non can have no such interest. His duty only extends to effects left unadminis-tered, and his interest is in them alone. Toller on Executors, 243-9; Cowen’s Rep. 329; 4 Mass. Rep. 634. And so long as property remains in kind he can control it, but he can effect no recovery for mal-administration. He is a mere trustee, and only chargeable so far as he receives assets, and by the 59th section of the orphans’ court law, his bond is only required to extend to goods not already administered. He, therefore, can sustain no damage in consequence of former mal-administration.

■ The 85th section gives the administrator de bonis non a right to demand the property of the deceased, in the hands of a former administrator, and in case of refusal to deliver it up, authorises a suit on the bond. It may be questionable whether a demand is not essentially necessary under this section, and if so, it should be averred in the breach, but it is certainly clear that it only refers to the specific property of the deceased, in the hands of the former administrator, and the breach should correspond with the extent of the remedy.

The administrator de bonis non could have no right of action in the first breach assigned, to wit, that the administrator did not make and return a true inventory of fifteen bales of cotton. If that be true, it was an act of mal-administration, that must have happened before the second administration, and no right of action accrued at the time to the plaintiff; but the legatees, distributees, and creditors, who alone could be injured by it, are provided with an ample remedy. No such remedy is given to the administrator by statute, and it is believed that his remedy is confined to cases mentioned in the statute as against his predecessor. .

The second breach, that the administrator sold property without taking security, is equally beyond the reach of the administrator de bonis non, vesting, it is true, a right of action in those interested and injured.

The third breach the plaintiff’s counsel relies on as sufficient, but it is defective in not showing that the money alleged to be due was"the specific and identical property of the deceased, remaining unadministered, and not the result of the former administration. This would be necessary according to the principles laid down, even if money can he such.a property, without further description, as is contemplated by the statute, which is questionable. Some identity must be given to it, some description used, of some separate and distinct character. The general terms used in the breach might be equally applicable and true in regard to all money, whether the proceeds of the administration, or whether it remained on hand at the death of the intestate, it would still be the money of the intestate, or to use the language of the breach, “ the goods, chattels, and credits” of the deceased. Money is a general term given to circulating medium, and yet there are many kinds of it, and the representatives of it, which all come within the general term. If the administrator de bonis non had brought an action of detinue by this general description, he could not have located his claim- on any particular parcel of money in preference to another.

The breach, however, does not stop at the averment, that the money was of the property of the deceased, but avers that it was found remaining on the account of the administrator. The law knows but two kinds of administrator’s accounts, the one annual, the other final; o,n one of these accounts the balance must have been found, and it is their peculiar property to show all moneys received and expended by the administrator, supported by vouchers, and to exhibit true balances. The inventory is the proper place for the goods and chattels and money which came to the hands of the administrator.

If, then, this amount of money appeared against the administrator on his account, the legatees, distributees, and creditors might sue for, and recover it, but not the administrator de bonis non. The law abhors a multiplicity of actions, and to give the second, administrator recourse to the first, and then compel those entitled to the assets to resort to him, would be a useless prolixity. If the administrator de bonis non can sustain this action for money on account, he may with equal propriety recover from his predecessor every balance that the accounts exhibit — a remedy not contemplated by the law, because it is expressly vested in other hands. The demurrer was properly sustained.

The judgment of the court below must be affirmed.  