
    Alsop against Mather and another:
    IN ERROR.
    The liability of an administrator de bonis non, is restricted to estate not administered; and there is no privity between him and his predecessors, nor is he responsible for any devastavit or default of theirs.
    Therefore, where a decree of a court of chancery for a sum of money, was obtained against executors, it was held, that such decree could not be made the foundation of a suit against an administrator de bonis non cum testamento annexo.
    
    Where the executor of a deceased partner continues his share in trade, and carries on the business with the surviving partners, such executor becomes a co-partner, and is liable personally, and not in his representative character, for the debts of the company.
    The effects of a deceased partner cannot be pursued, in law or equity, while the surviving partner is solvent.
    This was an action of debt on a bond, given to the plaintiff, as judge of probate for the district of Middletown, by the defendant Thomas Mather, as administrator de bonis non cum testamento annexo of Benjamin Williams; the defendant, Samuel Mather, being the surety.
    
      Middlesex,
    
    July, 1831.
    The defendant prayed oyer of the bond and condition and recited them, and then pleaded performance. The plaintiff replied, setting forth sundry matters as breaches. The defendants demurred to the replication : and the plaintiff joined in the demurrer.
    The replication stated the following facts. In June, 1812, Benjamin Williams died, leaving a large estate, which, by his will, he gave to his wife and children. He appointed his wife, Martha Williams, Josiah Williams, Ebenezer Sage and Samuel Wetmore his executors; who accepted the trust, proved the will, paid the debts and legacies, and distributed the residuum according to the will and the orders of the court of probate, and, on the 19th of August 1815, rendered their account. After the death of Benjamin Williams, his daughter Sarah intermarried with the defendant Thomas Mather, who took, through her, a large real and personal estate, devised and distributed to her under the will. After the distribution and settlement of the estate of Benjamin Williams, Josiah Williams and Stephen Holmes brought their bill in chancery to the superior court, in July 1817, setting forth, That Benjamin Williams, Josiah Williams, Phineas Johnson, Lemuel Hubbard and Samuel Kelsey, were owners of a cotton manufactory in Berlin; that in 1811, the owners appointed them, (the plaintiffs in the bill,) agents of the manufactory ; that they acted as such until December, 1816, rendering their accounts annually; that at the bringing of the bill, the persons interested in the manufactory were said Johnson, Hubbard, Hezekiah Brooks, said executors and Lyman Wilcox, administrator of the estate of Kelsey; claiming a balance of 3000 dollars, as agents, and praying for relief. In December 1818, the superior court found due to the plaintiffs in that suit the sum of 554 dollars, 44 cents, and decreed, that the defendants should pay to them four fifths of that sum; and that execution issue therefor. The estate of Kelsey was entirely insolvent; and the remaining defendants in that suit paid their proportion of the sum decreed to the plaintiffs and of the sum due from Kelsey’s estate, leaving a balance due from the executors of Benjamin Williams amounting, with interest, to 500 dollars. No funds came to the hands of those executors to pay the sum decreed against them. In March 1822, the claim was assigned to Stephen C. Williams, whereof said executors had notice, and were requested to pay it. In February, 1829, the executors were removed from office, by the plaintiff, as judge of probate, and the defendant Thomas Mather, was appointed administrator de bonis non, cum testamento annexo, of Benjamin Williams. On the 11th of June, 1829, the claim was presented to him, and notice given of the assignment, and payment requested; which was refused.
    The superior court adjudged the replication insufficient, On motion of the plaintiff, the record was transmitted to this Court for revision.
    
      Barnes, for the plaintiff.
    
      Stanley and Storrs, for the defendants.
   Peters, J.

1. An administrator is an agent, who is created, and whose powers and duties are prescribed, by law. The extent of his liability is defined, by the condition of his bond. This, in relation to an administrator de bonis non, is prospective and restricted to estate not administered. No part of ‘the condition of his bond creates or recognizes any privty between him and his predecessors ; nor makes him responsible for any devastavit or default of another, either of omission or commission ; and by the common law, there is no privity between an administrator de bonis non and a preceding executor or administrator. In Allen & al. v. Irwin & al. 1 Serg. & Rawle 549. 554., Tilghman, Ch. J., in delivering the opinion of the court, said: “There is no privity between the executor and the administrator dc bonis non. So totally unconnected are they, that at common law the administrator de bonis non could not have a scire facias on a judgment obtained by the executor.” The same point was decided in Grout v. Chamberlin, 4 Mass. Rep. 611, 613. “There is,” said Ch. J. Parsons, “ in law, no privity between an executor and an administrator de bonis non, cum testamento annexo; and a judgment recovered by the executor, cannot be executed, by the succeeding administrator.” The law is the same where an administrator recovers judgraentjand dies: the succeeding administrator cannot execute the judgment, but may bring a new action. Toller 448. 1 Stark. Ev. 192. And the law is the same between an executor or an administrator and the heir or devisee. Mason's devisees v. Peters’ admrs. 1 Munf. 437. If an administrator & bonis non cannot enforce a judgment recovered by his predecessor, a fortiori a judgment recovered against his predecessor, cannot be enforced against him. They are both inoperative and ineffectual, and open to investigation.

2. The defendants claim, that this judgment is not a valid demand against the executors, and, of course, not against the administrators de bonis non, because it accrued on transactions of the executors after the death of the testator; and it is a well settled rule, that where the executor of a deceased partner continues his share in trade and carries on the business with the surviving partners, the executor becomes a co-partner and personallij liable for the debts of the company. Wightman v. Townroc, 1 Mau. & Selw. 411. And the same point was decided, by this Court, in Nash & al. v. Tinker & al., at Tolland, in 1825. If this was a debt against the executors personally, they could not be liable in their representative character ; and the administrator de bonis non would not be liable for their private debts. This defence is open to the defendants.

3. The proprietors of the Berlin manufactory were, at all times, co-partners. At the time Williams and Holmes commenced their suit in chancery against them, Benjamin Williams and Samuel Kelsey were dead, Nevertheless, the plaintiffs in that suit prosecuted it, not only against the living, but against the representatives of the dead. But there is no case in England or in this country, in law or in equity, of pursuing the effects of a deceased partner, while the surviving partner is solvent. Pendleton v. Phelps, 4 Day 481. per Livingston, J. The same point was decided, by this Court, in Sturges v. Beach, 1 Conn. Rep. 507. 509. “There can be no occasion,” said Ch. J. Swift, “to resort to the estate of deceased partners, unless the surviving partner is insolvent;" and there is no intimation in the record, that any of the surviving owners of the Berlin Cotton Manufactory were solvent.

For these reasons, I am of opinion, that there is no error in the judgment complained of.

The other Judges were of the same opinion.

Judgment affirmed.  