
    W. F. B. Haynsworth vs. Thomas D. Frierson.
    
      Executors and Administrators — Administration—Assets —Sheriff.
    
    An administrator cannot maintain an action against-a sheriff for the proceeds of chattels sold under an execution against the intestate lodged in his lifetime, even though there be no other assets, and there are funeral and other expenses of the last illness unpaid.
    BEFORE GLOYER, J., AT SUMTER, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    ‘‘The plaintiff, Commissioner in Equity for Sumter District, claims, under authority in tbe nature of letters ad Iona colligenda, under the hand and seal of the Ordinary of Sumter District, issued under the Derelict Estates Act of 1857, the sum of eighty-two dollars and thirty-two cents from the defendant, the sheriff of Sumter District.
    “Samuel J. Wesberry died intestate, some time in 1857. There was at the time of his death a judgment in favor of E. W. Bonney, against him, the fi. fa. upon which was in the sheriff’s bands. After tbe death of Wesberry, tbe sheriff levied upon the chattels of the intestate, which he afterwards sold. No administration having been taken out on Wes-berry’s estate, letters as above stated were granted to the plaintiff after the levy and before the sale. Notice was given to the sheriff of the plaintiff’s claim, to wit: that the proceeds of sale, amounting to eighty-two dollars and thirty-two cents be paid to him, to be retained by him, as provided for by the Derelict Law, until administration should be granted on said estate.
    
      ."The sheriff refusing to pay over tbe said money, this action was brought to recover it.
    “ It is admitted that there are claims for expenses of the intestate during his last illness. A non-suit was ordered.”
    The plaintiff appealed and now moved this Court that the non-suit be set aside, on the ground:
    That by the Act of 1780, sec. 26, 5 Stat. Ill, debts due by an intestate, are arranged in certain degrees or classes— judgments and executions being postponed to funeral and other expenses of the last sickness, charges of letters of administration and debts due to the public, that all the personal property of the intestate is assets in the' hands of the administrator for the payment of the intestate’s debts in the order fixed by the said Act: that such payment would in this case be defeated if the sheriff be allowed to appropriate the sum in his hands towards the satisfaction of the execution in his office to the exclusion of preferred debts — that, therefore, the plaintiff is entitled to recover from the sheriff the said sum of money, and retain the same, as the custodian appointed by law, until an administrator be appointed, who can administer the estate, and with the assets pay the debts of the intestate, according to their priority as by law established.
    
      W. F. B. Haynsworih, for appellant.
    Blanding, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

Let it be considered that the plaintiff has all the rights, which would pertain to him if ordinary letters' of administration on the 'estate of S. J. Wesberry had been granted to him, after the levy and before the sale by the sheriff; and further that the visible effects,, which have been sold by tbe,sheriff, constituted the whole of the said estate. It must also on the other hand, be understood, as was admitted in argument, although it seems doubtful in the report, that no notice of the plaintiff’s claim was given to the sheriff ■before the sale.

Several cases in our Court of Equity (Rutledge vs. Rutledge, 1 McC. Ch. 471; Keckly vs. Keckly, 2 Hill, Ch. 257) seem to have declared that the order for payment of debts by an executor or administrator, which is prescribed by the Act of 1789 (5 Stat. 111, § 26) refers only to such assets in the hands of an executor or administrator, as remain after satisfaction of the liens which existed at the death of the testator or intestate. These cases rest mainly upon two earlier cases in that Court — viz.: first, The Commissioner vs. Greenwood, 1 Des. 452, 600, where the levy had been made in the debtor’s lifetime, and there was neither executor nor administrator; and second, Brown vs. Gilliland, 3 Des. 542, where it seems to have been conceded that a slave sold by an executor, under an order from the Ordinary, was, in the hands of the purchaser liable to the lien of a ft. fa. against the testator, which was lodged in his lifetime. (See 2 Rich. Eq. 254, 258.)

It may be that in a far stronger case than the plaintiff now presents, debts which in the prescribed order have precedence of executions, would be obliged to yield to general liens that had effect at the death of a testator or intestate; and I do not pretend to know whether the Court of Equity would in any case maintain the priority of “ funeral and other expenses of the last sickness” over an execution, nor, if it would, what would be the mode of proceeding. But I know that a sheriff is bound under the exigency of a fi.fa. to make and pay over money without delay, and I would not listen to an excuse for his neglect of the duty to pay what he had made, urged upon the ground that an administrator demanded the money and said that funeral expenses had not been paid. In some other way, and not by action against the sheriff for proceeds of a sale under execution, must tbe administrator or tbe person wbo paid tbe funeral expenses, present bis claim, if be would render it plausible.

In our case of Salvo & Wade ys. Schmidt, 2 Spear, 512, whilst a landlord, wbo took goods under a distress warrant, issued before tbe death of tbe tenant, but levied after, was held answerable as executor de son tort for tbe funeral expenses, tbe argument distinguishes between a distress warrant which does not have a lien, and a fi.fa., which has, but admits that tbe case might have been different if there bad been a levy under tbe warrant before tbe death of the tenant;

Tbe motion is dismissed.

O’Neall, WhitNer, Glover, and Mukro, JJ., concurred.

Motion dismissed.  