
    
      Peter Wiley, Ordinary vs. John Johnsey, Samuel Conn and J. A. F. Kirkpatrick. The same vs. G. S. Hooper and W. J. Darby, Adm'rs of Leon. Pratt.
    
    Suit, in behalf of creditors, on. an administration bond. Plaintiff produced judgments recovered against the intestate in his life time, which were unpaid, and a decree of the Ordinary, made after the commencement of this suit, which shewed that assets sufficient to pay the judgments had come to the hands of the administrator: — Held, that plaintiff had thus established a breach of the bond, and was entitled to recover the amount of the judgments.
    The foundation of an action at law on the bond of an administrator, is the bond itself, and not a decree of the Ordinary; for breach of any one of the covenants an action lies.
    Where a creditor sues less proof may establish a breach than is required where distributees sue.
    A creditor suing on the bond, has only to establish his debt, and shew that assets have come to the hands of the administrator, sufficient to pay it, which have been misapplied.
    A decree by the Ordinary need not be obtained before commencement of the suit in behalf of a creditor.
    Sureties of an administrator are not liable for the proceeds of real estate paid by tho Ordinary to the administrator under the Act of 1842.
    
      Before Glover, J., at Chester, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ These were actions of debt on a bond given by John Johnsey, for the faithful administration of the estate of James F. Johnsey. Samuel Conn and J. A. F. Kirkpatrick were two of his sureties, and G. S. Hooper and W. J. Darby are the administrators of the estate of Leonard Pratt, another surety. The actions were brought for the benefit of sundry judgment creditors of James F. Johnsey, whose names were endorsed on the declarations.
    “ John Johnsey, the administrator, had been cited for several years to attend the Court of Ordinary and settle the estate of his intestate, and failing to do so, the Ordinary made his decree, accompanied by an account of his actings and doings as administrator. The decree was so vague and uncertain, that it was impossible to ascertain, from it, the amount of assets in the hands of the administrator, applicable to the payment of debts, except by reference to the account which accompanied it. The attention of the jury was called to the decree, and to the very unsatisfactory manner in which it was framed ; but they were informed, that a reference to the accounts stated, and which might be considered a part of the decree, would, perhaps, satisfy them of a sufficiency of assets in the hands of the administrator, and of the amount due to the respective creditors of the intestate. It did appear to the Court, that all the facts, necessary to establish the plaintiffs’ cases, might, by care and attention, have been collected from the decree, by aid of the statement which accompanied it; and the jury was'so instructed.
    “ After a long absence, the jury returned into Court, and stated the difficulties which they had encountered, arising from the vagueness of the decree ; and in reply to a question by a juryman, the presiding Judge stated, that every plaintiff assumed the duty of establishing his case by sufficient evidence, and if he failed to do so to the satisfaction of the jury, they could find for the defendant. This conclusion was induced from a belief, then and still entertained, that the weight of evidence is a question proper for the consideration of a jury, and not ‘ a matter of law for the Court.’
    “On the first ground of appeal, it is only necessary to remark, that in the statement annexed to the Ordinary’s decree, the administrator is charged with the amount of $282 35, derived from the proceeds of a sale made by the Ordinary of the real estate of the intestate, James F. Johnsey ; which amount the Ordinary had paid over to John Johnsey, the administrator, having taken his bond and sureties agreeably to the provisions of the A.A. 1842. (11 Stat. 232.) The jury was instructed that the sureties to the administration bond, sued on in this case, could not be properly charged with this amount, and, if there be any devastavit on the part of the administrator in respect to the proceeds of the sale of the real estate, the sureties on the second bond were alone liable.
    “ The consideration of this ground of appeal is, however, not
    
      important to the real merits of the case, if I apprehend the Ordinary’s decree; as the assets in the hands of the Ordinary were sufficient to pay the judgment creditors, for whose benefit these suits were brought, even after deducting the proceeds of the sale of the realty.
    “ It appeared to the Court that the evidence would have warranted a finding for the plaintiff in both cases. The verdict was for the defendants in each case.”
    The plaintiff appealed, and now moved for a new trial, on the grounds:
    1. Because his Honor erred, as is most respectfully submitted, in refusing to submit to the jury the question, whether, in fact, the money arising from the sale of the land, as made by the Ordinary, was not, in fact, applied to the payment of debts of the intestate, James F. Johnsey.
    2. Because the decree of the Ordinary, given in evidence to the jury in these cases, shewed clearly and certainly that funds, in truth and in fact, had come to the hands of the administrator sufficient to pay all the judgment creditors of James F. Johnsey, and leave a balance to be applied to the payment of bonds and sealed notes, and, therefore, the real plaintiffs were clearly entitled to verdicts.
    3. Because the decree of the Ordinary was full and clear, and amply sufficient to sustain the plaintiffs’ cases: but if it were not, then, it is respectfully submitted, that his Honor should, on the motion of plaintiffs’ counsel, have continued the cases, and ordered the matter back to the Ordinary, with instructions to make a more perfect decree.
    
      Thomson, for the motion,
    cited Ordinary vs. Hunt, 1 McM. 380 ; Ordinary vs. Phillpot, 1 Bay, 462 ; Ordinary vs. Mortimer, 4 Rich. 271.
    
      McAliley, contra,
    cited Ordinary vs. Jones, 4 McO. 116; Ordinary vs, Osborn, 2 Rich. 90 ; Ordinary vs. Parkman, 1 N. and McC. 587. The decree of the Ordinary was after action commenced, and on that ground the plaintiffs were not entitled to recover.
   The opinion of the Court was delivered by

Glover, J.

The foundation of actions against administrators and their sureties, in this Court, is the bond of the administrator, and not a decree of the Ordinary. Persons sustaining injury by a breach of the bond are allowed to submit the condition to a jury, and recover such damages as the evidence may warrant. The liability of the obligors can be ascertained only by reference to the condition, which prescribes the duties of the administrator, the non-performance of which gives the right of action against him and his sureties. By his obligation he assumes to make a true and perfect inventory of the goods, chattels and credits of the deceased ; to administer the same according to law ; to make a just and true account of his actings and doings when required ; and all the rest and residue of the said goods, chattels and credits, which shall be found remaining upon the account of his administration, the same being first allowed by the said Court, to deliver and pay unto such persons, respectively, as are entitled to the same by law. A default of the administrator in respect to any of the duties, which he has thus assumed to discharge, is a breach of his bond: — the condition defining his duties, and the penalty furnishing a security for their performance.

The character of the liability having been ascertained, the next enquiry is, what evidence is necessary to establish it. The amount of damages claimed by creditors for the alleged breach of an administration bond, and the ultimate responsibility of the sureties, may require proof which would be insufficient where distributies are parties. This distinction was noticed in the case of the Ordinary vs. Hunt, (1 McM. 380.) “ When the suit on the bond is for the distributee, an account before some tribunal is necessary, in order to ascertain for what sum, after the payment of debts, the administrator is liable. A creditor sueing on the bond has only to establish his debt against the estate of the intestate, and shew that assets have come to the hands of the administrator sufficient to pay it, which have been misapplied.”

In the cases before the Court, judgments had been recovered by the plaintiffs against the intestate, in his life time, which fully established their debts, and it was only necessary further to shew a sufficiency of assets to pay them, and that they had been wasted or misapplied. The Ordinary’s decree, although very defective in form, was accompanied with a statement, prepared from the returns of the administrator, which shewed assets in his hands sufficient to satisfy these judgments, besides a balance applicable to the payment of other creditors. These judgments being still unpaid, it is manifest that he has failed to administer according to law the goods, chattels and credits of the deceased, which have come to his hands, and that he has either wasted or misapplied them. An indulgence of twelve months is extended to him to ascertain the debts due to and by his intestate, and he is exempt from suit for nine months, a forbearance which would be abused, should he neglect, within the time limited, to make preparation for a speedy settlement of the estate. His first duty is to collect the assets and make them available in the payment of the debts. If he has fully administered, or has only so much as will pay preferred creditors, he can by his plea protect himself from an alleged breach of his bond. If the administrator, contrary to his express undertaking, shall delay or neglect to pay the debts of the deceased, the distributees must be postponed in the receipt of their respective shares. It is the duty of this Court to remove all difficulties unnecessarily interposed, and to prevent all delays occasioned by the neglect of their duty by administrators, calculated to prejudice creditors and distributees, in the prosecution of their legal rights.

The amount of the plaintiffs’ damages was proved by the executions, which they offered in evidence, and the ability of the administrator, Johnsey, to satisfy them, is admitted by his returns made to the Ordinary, and which were the foundation of his decree. The rest and residue of the goods, chattels and credits, which shall be found remaining upon the account of his administration, the same being first allowed by the said Court,” the administrator is “ to deliver and pay unto such persons, respectively, as are entitled to the same by law.” The persons here intended are those who may claim as distributees under the Act of 1791: and to ascertain them and their respective interests, may require a decree from the Court of Ordinary.

It was objected that these actions were prematurely brought, because they were commenced before the Ordinary had made his decree. In the case of the Ordinary vs. Jones, (4 McC. 113,) Judge Colcock does come to that determination, but he confessed with some difficulty. This Court, however, several years after, in the case of the Ordinary vs. Hunt, before referred to, came to a different conclusion. Judge Earle delivering the opinion, says — “ Yet, I think there are some errors prevailing among the profession on this subject, as I think there are some ill-considered dicta scattered through the cases. One of these is, that no action at all can be maintained on the administration bond against the sureties, until the administrator has been cited before the Ordinary to account, aird there has been a decree against him.” A Court of law will not assume to determine an issue in which the settlement of accounts is involved; but will leave with the Ordinary his appropriate duty of adjusting the administrator’s accounts and making a decree which will exhibit the condition of the estate. The Ordinary’s decree is the best evidence to shew the extent of the administrator’s liability; but it does not follow that the making of it is a condition precedent to the commencement of an action on his bond. It is intimated, in the Ordinary vs. Mortimer, (4 Rich. 271,) that the failure of the administrator to account after citation, is a breach of his bond, for which his sureties may be sued.

This Court concurs with the Circuit Judge, respecting the proceeds of the sale of the real estate, paid by the Ordinary to the administrator, and that, deducting the proceeds of said sale, there was abundant evidence shewing sufficient assets to pay the judgment creditors, for whose benefit these actions were brought.

The finding of the jury was, therefore, manifestly against the evidence, and the motion for a new trial is granted.

O’Neall, Wardlaw, Frost and Whitkter, JJ., concurred.

Motion granted.  