
    *Treasurer of Pickaway, for the use of N. Oulrey and Wife, v. Wm. Hall, Ex’r of Jos. Hall.
    Heir can not sustain an action against security on -an administrator's bond, until the administrator’s accounts are settled with the court, or plaintiffs right established by judgment. .
    Person suing as heir, must show how he become so in the declaration.
    This was an action of debt upon an administration bond. The plaintiffs set out in their declaration all the proper facts, showing the granting of letters of administration, and executing the bond, by the defendant’s testator, as security for the administration. They then set out the bond and condition, and assigned as breaches that the administratrix, generally, did not perform the duties required by law; that she did not return a true inventory; did not return an accurate statement of sales, and of moneys received and paid out; that she had not presented her account for settlement, nor paid to the parties entitled the moneys’due to them, but had wasted the goods, etc., that came to her hands. And also, that the administratrix had neglected and refused, though often requested and demanded, particularly on March 30,1827, to pay the said Nicholas and Eebecca, said Eebecca being one of the heirs of Joseph Glaze, deceased, the proportion of moneys before that time come to the hands of the administratrix, to which said Eebecca, as heir at law, was entitled.
    To this declaration there was a general demurrer, which was overruled by the court of common pleas of Pickaway county, and the defendant appealed to the Supreme Court, and the cause was adjourned here for decision.
    Olds, for the defendant,
    contended that the declaration Avas defective in two particulars:
    
      First. It contained no averment of a balance found due from the administrator upon settlement with the court, and no averment of a right in plaintiffs and a liability in the defendant, ascertained by the judgment of a court.
    
      Second. It did not show how the plaintiffs made title as heirs.
    
      In support of the first point, ho cited 1 Wash. 31; 1 Mun. 1; 4 Mun. 289; 2 Hen. & Mun. 8; 9 Mass. 114.
    On the second point, he cited 2 Ohio, 165-167.
    Doane, for the plaintiff,
    argued, on the first point, that the doctrine relied upon by the defendant was peculiar to *the courts of Virginia, and had been established there without reference to any authority. He cited 1 Salk. 163; Cow. 140; 2 Johns. Cases, 376; 1 Johns. 311, to show that similar suits had been sustained without the averments insisted upon by the defendant’s counsel.
    On the second point, he insisted the exception could only be taken by special demurrer, and argued that the case was distinguishable from the one cited from Ohio Reports by the defendant’s counsel.
   By the Court :

The security in an administration bond is not the proper person to adjust the rights of parties interested in the administration. He can know nothing of,the true state of the accounts, or of the conduct of the administrator, and can not be the most suitable person to litigate or defend them. It is clear, therefore, that it would seem most proper to hold him only responsible where the right of the claimant has been judicially established, either by settlement with the court, or judgment in an action direct against the administrator. We do not thinks the English or New York authorities cited by the plaintiff’s counsel sustain the position he takes; and we consider it much the safer doctrine to require proceedings, first against the administrator himself, and only allow a resort to the surety when nothing is to be contested but the question of payment.

We are equally clear that the plaintiff’s declaration is defective upon the second ground of exception.. Under our law, if the intestate leave a widow and no child, the widow takes the whole personal estate, and thus, as heir, would be entitled to an account for the whole. If the plaintiff claim as heir, he must show how he makes himself so, that his rights may judicially appear to the court, and the proportion of the estate due to him be ascertained.

Judgment for the defendant.  