
    
      Burnley’s Representatives v. Duke and Others.
    May 1843.
    Richmond.
    (Absent OAinmn, P., and Stanahd, J.)
    /Legatees — Grants of Administration — Validity—Payments by Representatives of Deceased Administrator to Succeeding Administrator — When Good against Legatees-- Liability to Legatees of Succeeding Administrator and His Sureties. — Pending a suit in chancery by legatees against an executor to recover their legacies, the executor died. Process was awarded to revive the suit against his administrator; and the administrator dying, process was issued and an order entered to revive the suit against his representative. But afterwards that process was quashed and that order set aside, as early as 1811; and then, by consent of parties, the suit was revived against the administrator de bonis non of the executor, and by like consent it was entered that the cause was not to abate by the death of any of the parties. A personal decree was obtained in 1818 by the legatees against the administrator de bonis non, from which he appealed. Pending the appeal, he died. Whereupon, though the two former grants of administration on the executor’s estate had been by the court of Orange, the court of Hanover now granted administration on the same estate, not in the form of a grant de bonis non, but of an original grant. At the instance of the legatees, a scire facias issued to revive the appeal against this new administrator, (calling him administrator de bonis non) which was duly executed, and in 1822 the decree affirmed. In the caption to the decree of affirmance, the name of the administrator de bonis non against whom the decree of the court below was entered did not appear as a party, but the new administrator was mentioned therein as appellant. In 1823, a bill of revivor and supplement was filed in the court below, convening before the court, and seeking to charge, the representatives of the first administrator and of the first administrator de bonis non. It turned out, that after the scire facias to revive the appeal had been executed, and before the decree ot affirmance, the new administrator had, in the character of administrator de bonis non, brought suits and obtained decrees for the assets of the executor’s estate in the hands of the representatives of the first administrator and of the first administrator de honis non, against those representatives respectively, without opposition on their part; and the decrees so obtained were soon after satisfied. Those decrees were in 1820 and 1821, about six years before the decision in Wernick’s adm’r v. M’Murdo &c., 103 *5 Rand. 51. Hbld, 1. (in accordance with Fisher v. Bassett and others, 9 Leigh 119,) that the grants of administration by the court of Orange to the first administrator and the first administrator de bonis non, never having been reversed or revoted, must be considered valid grants, which conferred upon those administrators respectively all the powers of rightful administrators. 2. That when the grant to the firsi administrator de bonis non expired by his death, and there was no conflicting right in existence, it was competent for the court which might in the first instance, have rightfully exercised jurisdiction, to act on the subject; and Hanover court having acted when there was no such conflicting right, and its grant not having been reversed or revoked, that grant is valid, and the sureties in the administration bond taken by Hanover court are liable thereupon. 3. That as the legatees, after the death of the first administrator, dismissed his representative from the suit, it was lawful for that representative to pay over to the administrator against whom the legatee were proceeding, the unapplied assets of the executor’s estate; and such payment, made in good faith and under the sanction of a decree of a court of competent jurisdiction, is a complete protection to such representative against the legatees, as to the money so paid. 4. That the decree in favour of the legatees against the administrator de bonis non was personal, only in respect to the assets in his hands, and (it being nowhere alleged that he had converted or wasted the same) such unapplied assets coming to the hands of his representative must in equity be regarded as unadministered assets of the executor’s estate; and the representative of the administrator de bonis non having in good faith, and in pursuance of the decree of a court'of competent jurisdiction, paid over the said assets to the administrator against whom the legatees revived the appeal, such payment protects the estate of the administrator de bonis non from the claim of the legatees. 5. That for the assets so paid over by the representatives of the first administrator and of the administrator de bonis non, the administrator to whom such payment was made, and the sureties in his official bond, are liable. 6. That the dismission of the bill as to the representatives of the first administrator and of the administrator de bonis non should be without costs.
    It is now fifty years since certain legatees of John .Burnley filed a bill in the high court of chancery at Richmond, to recover their legacies from Zachariah Burnley, who took administration upon the estate 104 of John. *'A report of the case when it was before this court on a former occasion, will be found, under the name of Burnley’s administrator v. Duke and others, in 1 Rand. 108. To that report such addition will be made at this tijne, as is necessary to understand the questions now discussed.
    On the Sth of March 1803, the suit abated) by the death of the defendant Zachariah Burnley, and on the motion of the plaintiffs, by counsel, a subpoena was awarded to revive it agáinst Hardin Burnley junior his. administrator. On the 4th of September 1809, the suit was entered abated as to the defendant Hardin Burnley administrator of Zachariah Burnley, by his death. On the 19th of that month, a scire facias was awarded to revive it against John M. Sheppard as administrator of Hardin Burnley: and on the 10th of September 1810, it was by consent ordered that the suit stand revived against him. But afterwards, to wit, on the 3d of September 1811, an order was entered, whereby, — after setting forth that by a clerical mistake the order of the 19th of September 1809 awarded process to revive against John M. Sheppard administrator of Hardin Burnley deceased, instead of Alexander M. Shepherd administrator de bonis non of Zachariah Burnley, and that in the scire facias and the subsequent order the same mistake occurred, — it was ordered that the said writ of scire facias be quashed, and that the orders of the 19th of September 1809 and the 10th of September 1810 be set aside. And on the motion of the plaintiffs by counsel, a writ of scire facias was thereupon awarded to revive the suit against Alexander Shepherd as administrator de bonis non of Zachariah Burnley. Subsequently, to wit, on the 12th of February 1813, the following order was entered: “By consent of the parties by their counsel, this suit, which abated as to Hardin Burn-ley administrator of Zachariah Burnley deceased by his death, stands revived 10S against Alexander ^Shepherd administrator de bonis non of the said Zachariah Burnley deceased. ’’ Proceedings were then had to obtain an account of Alexander Shepherd’s administration of Zachariah Burnley’s estate, in the course of which certain orders were entered by consent, and among them the following: “And by the like consent, this cause is not to abate by the death hereafter of any of the parties.’’
    In the meantime John M. Sheppard, as administrator of Hardin Burnley, had made various payments to Alexander Shepherd as administrator of Zachariah Burnley. On the 18th of August 1809, the latter received of the former 604 dollars 77 cents, found in a bag which had been deposited in bank, and was considered to belong to the estate of Zachariah Burnley. A suit was also instituted by the latter against the former, in the superior court of chancery at Richmond, in which, on the 25th of February 1811, it was entered of record that the plaintiff acknowledged to have received on that day, from the defendant, the sum of 2000 dollars; and on the 24th of September 1811, it was likewise entered that the defendant that day paid in court, to the attorney of the plaintiff, 1756 dollars. With these sums Alexander Shepherd was duly charged, in the account returned of his administration on the estate of Zachariah Btirnlej'; and there appearing due from him on that account 1613 pounds 16 shillings and 8 pence, with interest at S per centum on 1384 pounds 13 shillings and 7 pence, part thereof, from the 31st of December 1817, the court of chancery at Fredericks-burg, on the 2d of May 1818, decreed that the said “defendant Alexander Shepherd, administrator de bonis non of Zachariah Burnley deceased,” pay the same, in part of the legacies due to the plaintiffs who filed the original bill, and others who had been admitted to join with them in the of the suit.
    106 ’^Pending the appeal of Alexander Shepherd from this decree, William D. Taylor was made a party to the case in the court of appeals, in the character of administrator de bonis non of Zachariah Burnley deceased. At the instance of the appellees, a scire facias issued for this purpose the ISth of April 1820, which was executed the 6th of May 1820. And on the 30th of March 1822, when the court of appeals pronounced its decree, - the name of Alexander Shepherd did not appear in the caption to the decree as a party, but “William D. Taylor administrator de bonis non of Zachariah Burnley deceased” was mentioned therein as “appellant.” By the decree of the court of appeals it was ordered, that the decree of rhe court of chancery be affirmed, and that the appellant, out of the estate of said Zachariah Burnley in his hands to be administered, pay unto the appellees damages according to law for retarding the execution thereof, and also their costs by them about their defence in the court of appeals expended.
    While the case was in the court of appeals, to wit, on the 31st of August 1820, William D. Taylor as administrator de bonis non of Zachariah Burnley deceased filed a bill in the county court of Orange against William Shepherd as administrator with the will annexed of Alexander Shepherd, to which bill and answer was at the same time filed; and the cause coming on by consent to be heard, the court on the same day appointed commissioners to state an account between the parties. They made a report, based upon the account previously returned of Alexander Shepherd’s administration on the estate of Zachariah Burnley; charging Alexander Shepherd with the same money, and shewing a balance due from him, at the date of the report, of 1882 pounds 8 shillings 11% pence, of which 1385 pounds' 3 shillings 7% pence was principal money. The report was made the 23d of April 1821; and on the same day, both parties consenting that the court should act upon it, 107 *and neither party excepting to it, the same was approved and confirmed, and the court decreed that the defendant William Shepherd, out of the estate of Alexander Shepherd in his hands, pay to William D. Taylor as administrator de bonis non of Zachariah Burnley the said sum of 1882 pounds 8 shillings 11% pence, with interest on 1385 pounds 3 shillings 7% pence from the date of the decree, and the costs of suit.
    The decree of the court of appeals was entered in the court of chancery at Freder-icksburg on the 19th of September 1822. Thereafter the suit was abated as to the defendant Alexander Shepherd by his death, and revived against William Shepherd his administrator. William Shepherd, as such administrator, filed an answer, setting forth the grant of administration de bonis non upon the estate of Zachariah Burnley to William D. Taylor; the abatement in the court of appeals as to Alexander Shepherd, at the suggestion of the appellees; the revival by them in the name of Taylor alone, as the administrator de bonis non of Zachariah Burnley, and the absence of any proceeding in the said court against the respondent as the legal representative of Alexander Shepherd: whereby, the respondent insisted, the ap-pellees had released him from all liability under the said' decree of the 2d of May 1818, and waived all their rights to come against him for satisfaction thereof. The respondent then set forth the proceedings by, and decree in favour of, William D. Taylor as administrator de bonis non of Zachariah Burnley against him as administrator of Alexander Shepherd, and slated that he had paid off that decree to William D. Taylor, and to Robert Taylor esq. his attorney. He insisted that these payments were, under the circumstances, proper and legal; and at all events that the plaintiffs should be compelled to exhaust their remedy against William D. Taylor and his sureties, before the respondent, or the estate of Al-108 exander Shepherd, ^should be charged again with the payment of money which had been once fairly and fully paid.
    At December rules 1823, the plaintiffs filed a bill of revivor and supplement, reviving the suit as well against William D. Taylor administrator de bonis non of Zachariah Burnley, as against William Shepherd administrator of Alexander Shepherd, and praying that the defendants, or some of them, may be decreed to pay the amount of the decree in favour of the legatees. By way of supplements, the bill farther set forth, that besides the money found due from Alexander Shepherd to Zachariah Burnley’s estate, there was still a large balance due to the legatees, and the money due from Zachariah Burnley to the estate of John Burnley was more than sufficient to have satisfied that balance: that a considerable estate of the said, Zachariah came to his representatives, who ought to have made good, out of the same, any waste of the said Zachariah; or the waste ought to be compensated by the representatives of the said Zachariah, or their sureties: that the administrator of the said Zachariah was Hardin Burnley, who received a large personal estate, and died largely indebted as such administrator: that after the death of Hardin Burnley, John M. Sheppard took administration of the said Hardin’s estate; and upon the death of John M. Sheppard, administration de bonis non on Hardin’s estate was granted to Henry Pendleton: that considerable assets of the said Hardin have come to the hands of the said Henry Pendleton; and indeed the complainants have understood that a considerable payment was made by Henry Pendleton to William D. Taylor as administrator de bonis non of Zachariah Burnley. Henry Pendleton was therefore made a defendant; and William D. Taylor being insolvent, John Darracott and James Madison his sureties were also made defendants. And the bill, besides asking that the proper accounts might be taken, prayed that 109 Darracott and *Madison, as sureties of William D. Taylor, might be decreed to make good such portion of the assets of the said Zachariah that had come to the said William D. Taylor’s hands, as he might be delinquent.
    It turned out that while the case was in the court of appeals, to wit, on the 14th of June 1821, a decree was obtained in the superior court of chancery at Richmond, by William D. Taylor as administrator of the estate of Zachariah Burnley unadminis-tered by Alexander Shepherd, against Henry Pendleton as administrator de bonis non of Hardin Burnley. The entry of the decree set forth, that, the plaintiff admitting that Alexander Shepherd, the former administrator de bonis non of Zachariah Burnley, received of John M. Sheppard, the administrator of Hardin Burnley, 600 pounds on the 23d of February 1811, and 526 pounds 10 shillings on the 24th of September in the same year, in part of the balance appearing by the report of a commissioner in the cause to be due from the estate of Hardin to the estate of Zachariah Burnley, the court, approving the said report, and allowing credit for those sums as paid at those dates, decreed that the defendant Henry Pendleton, as administrator de bonis non of Hardin Burnley, pay'to the plaintiff 1268 pounds 7 shillings 4 pence (that being the balance due after allowing the said credits), with interest from the 24th of September 1811 till paid, and the costs of suit. Pendleton paid to Taylor, in part of this decree, 488 pounds 8 shillings on the 5th of January 1822, and on the 21st of February 1822 he paid the balance, then amounting to 1594 pounds 1 shilling 11 pence.
    The payments to William D. Taylor, and his insolvency', now gave rise to questions of difficulty. The cause being revived against the administrators of Henry Pen-dleton, they filed an answer relying upon the validity of the payments made by him, in like manner as William Shepherd had relied upon his payments 110 *as administrator of Alexander Shepherd. On the other hand, the sureties of William D. Taylor (or rather Madison one of them) sought to be exonerated from all liability for the money which he had received.
    A copy of the order granting administration to William D. Taylor was filed. It was as follows:
    “In Hanover county court, January 26, 1820. In the motion of William D. Taylor, a certificate is granted him for obtaining letters of administration of the estate of Zachariah Burnley deceased, he having taken the oath of an administrator, and with James Madison and John Darra-cott his sureties entered into and acknowledged a bond according to law, which bond is ordered to be recorded.’’
    A copy of the bond was filed also. It was in the penalty of 15,000 dollars.
    Madison, in his answer, stated, that he was informed and believed that Zachariah Burnley lived and died in the county of Orange, seized and possessed of a considerable estate, both real and personal, in the said county, and he had no knowledge of his possession estate in any other county: that administration upon his estate was duly and legally granted by the county court of Orange to Hardin Burnley: that upon the death of Hardin Burnley, administration de bonis non was duly and legally granted by the same court to Alexander Shepherd: and that upon the death of Shepherd, the grant was made to Taylor by the county court of Hanover. And the respondent insisted, that the court of Hanover had no right or jurisdiction whatever to grant such administration to Taylor; that the said grant, and the bond taken of Taylor and his sureties, were void; and that the sureties could not be charged by virtue thereof.
    Pendleton’s administrators, in their answer, said, that the grant of administration to Taylor was made by a court possessing power to grant administrations upon 111 *the estates of dead persons; that in the grant of the said administration, their said testator had no agency ; and that when the same was made, and even when he paid Taylor, he had no information (they believed) which could induce him to entertain a doubt as to the propriety of the grant. They had understood (they said) that Zachariah Burnley, for some time before his death, had no fixed place of abode, but resided sometimes in the county of Hanover and sometimes in the county of Orange, and that he actually died in Hanover.
    Depositions were taken, and exhibits filed, relative to the matters of fact upon which depended the regularity of the grant of administration on the estate of Zachariah Burnley by the county court of Hanover. But the ground on which the opinion of this court rests, renders it unnecessary to state the purport of the evidence.
    As to Taylor and Darracott the bill was taken for confessed. Upon the death of William Shepherd, the cause was revived both against his executors, and against the administrator de bonis non of Alexander Shepherd. And when Henry Pendle-ton died, the cause, besides being revived against his administrators, was revived first against John T. Swann, and after-wards against John H. Steger, as adminis-' trators de bonis non of Hardin Burnley. Steger, in his answer, insisted upon the validity of the payments made by the previous administrators of Hardin Burnley, and stated also that no assets had come to his hands. Madison dying, there Was a revival against Lawrence Battaile sheriff of Caroline county, to whom the estate of Madison was committed.
    On the 19th of October 1830, the court of chancery at Fredericksburg made a decree, directing an account of the administration upon the estate of William Shepherd, and an account of his administration upon the estate of Alexander Shepherd, (in tak-112 ing which last account, *'the commissioner was directed to consider the payments made by William Shepherd to William D. Taylor as improper and of no avail, so far as the plaintiffs were concerned,) and directing also the administrator de bonis non of Alexander Shepherd to render an account of his administration, and the administrators of Henry Pendle-ton to render an account of theirs.
    Afterwards the cause was removed to the circuit court of Essex, and came on to be heard before that court the 9th of October 1832, upon the report of the commissioner, which shewed that sufficient assets of William Shepherd’s estate came to the hands of his executors to satisfy the plaintiffs’ demand. Whereupon the court decreed that the executors of William Shepherd pay to the plaintiffs the sums decreed against Alexander Shepherd on the 2d of May 1818, subject to a credit for certain sums which, pending the suit, had been obtained by means of an injunction restraining Robert Taylor from paying over funds received by him as attorney for William X). Taylor. And the report further shewing that the administrators of Henry Pendleton had received of his estate more than enough to pay the balance due the plaintiffs on account of their legacies, after deducting what had been decreed against Alexander Shepherd, the court decreed payment by Henry Pendleton’s administrators of the said balance. The court further decreed that William Shepherd’s executors and Henry Pendleton’s . administrators pay to the plaintiffs their costs; that the bill of the plaintiffs be dismissed as to Darracott and Madison’s administrator; and that the plaintiffs pay to those defendants their costs. And liberty was reserved to William Shepherd’s executors to apply to the court for a decree against Taylor.
    On the petition of William Shepherd’s executors and Henry Pendleton’s administrators, an appeal was allowed.
    113
    *Patton for appellants.
    On what ground can the sureties of Taylor, who have become bound for the money received by him as administrator, be exonerated? Does it lie in their mouths to say that the administration ought not to have been granted, and that Taylor, who has recovered and received the money, ought not to have recovered and received it? Can any thing be more universally true, than that when an administrator has asserted a right in that character, and recovered money as such, he must account for that money as assets, to creditors or legatees of the deceased? Upon the principle of res adjudicata, creditors and legatees would be conclusively bound by a judgment against an administrator for a claim asserted against him, and they are as conclusively entitled to the benefit of a recovery of assets by him. Let it be conceded that the county court of Hanover was not the proper court to grant administration; still that is not material. For that court, having a general jurisdiction to grant administration, has also authority to determine whether the facts are such as make it proper that administration should be granted; and the correctness of its determination cannot be enquired into in this collateral way. This is settled by the decision in Fisher v. Bassett and others, 9 Leigh 119. The decision is, that although the grant of administration ought not to have been made, yet until revoked on appeal or citation, it confers all the rights resulting from a regular administration. Perhaps, uowever, it may be attempted to liken this case to the one upon which there was a difference of opinion among the judges in Fisher v. Bassett. It was a question there, supposing a grant of administration to be irregularly made and therefore voidable, what would be the effect of a subsequent grant by that court which would have had jurisdiction if the first grant had not been made. On this question, if it were involved here, perhaps nothing at all material could be added to what 114 *was said by judge Tucker. But the question is not involved in this case. Upon the death of Alexander Shepherd, the administration was vacant, and it was not in the power of the court which granted the administration to him, to act upon it by citation or otherwise. The administration being vacant, a grant by any court of general jurisdiction must be valid. The opinion of judge Parker, differing from that of judge Tucker on the question just adverted to, rested chiefly on Griffith v. Frazier, 8 Cranch 1, in which the subsequent grant was considered a nullity because there was an administrator in full life. The court there likened the case to the grant of administration on the estate of a living man. But here it would be necessary to go a great way farther, to hold the subsequent grant a nullity. The position would have to be maintained, that an administration irregularly granted is, after the death of the person to whom the irregular grant was made, sufficient to prevent a grant by the court which would have had jurisdiction but for the previous grant.
    But passing from the question as to the validity of the grant of administration to Taylor, the payments to him were under regular decrees, which are conclusively binding unless impeached for fraud or collusion. Payment of money to an executor is valid, though he was acting under probat of a forged will. Allen v. Dundas, 3 T. R. 125. Here the court is called upon to compel parties to pay money which they have once paid under the sanction of a court of competent jurisdiction. For the county court of Orange and the court of chancery at Richmond clearly had jurisdiction to act upon the bills presented to them, and to decree payment. It may be said, that what those courts did was in conflict with the law, as now settled in Wernick’s adm’r v. M’Murdo &c., 5 Rand. 51. It would be curious to apply the doctrine of that case to this, in which every dollar decreed against Shepherd was recovered by him 115 *'as administrator de bonis non, from a previous administrator. If Wer-nick’s adm’r v. M’Murdo &c. settles the law against us, it equally settles it for us. But the court never meant to settle, in Wernick’s adm’r v. M’Murdo &c. that if an administrator de bonis non received assets from a predecessor in the administration, he and his sureties would not be liable. 5 Rand. 92, 3, opinion of Green, J. It may be said, that here the legatees had asserted their claim against Alexander Shepherd, and therefore his estate ought to be held liable to them. But the answer is, that so soon as he died, the legatees ceased their pursuit against him. They not only abandoned all claim against his representatives, but carried it on against Taylor. Not only by the consent of the appellees but by the decree of this court, Taylor is the party against whom their rights are to be asserted. Let it be admitted that it was a mistake, an oversight, — that it would be a hardship to deprive the legatees of what they are entitled to; would not the hardship be much greater if Shepherd’s repre-sentives were made to bear the loss? The case is analogous to that of a party standing by and seeing another purchase without making known his claim. Here the-legatees have been active in inducing Shepherd’s representatives to. part with their money. So too as to Henry Pendle-ton’s representatives. If Pendleton was chargeable, it was a representative of Hardin Burnley. And by the order of the 3d of September 1811, Hardin Burnley’s representatives were discharged from all claim.
    Harrison for the legatees.
    When this case was formerly in this court, there was no occasion to revive the appeal against the representative of Zachariah Burnley. Though the decree against Alexander Shepherd was by the name of administrator de bonis non, this was mere descriptio per-sonas ; the decree was personal against 116 him. *The question then is, whether an erroneous proceeding by counsel in this court, in reviving against Taylor, can amount to a release of Shepherd from the decree? That decree was surely binding on the estate of Shepherd in the hands of his administrator. But it is said, the affirmance by this court was after the death of Shepherd, without any revival of the appeal against his representative. It is a complete answer to this objection, that it had been agreed the suit should not abate by the death of either partju Such an agreement has been held to be binding. Garlington v. Clutton, 1 Call 520., But suppose there was error in the mode of proceeding in this court, was its decree a mere nullity? It is the business of the appellant to prosecute his appeal with effect; and upon the death of Alexander Shepherd, if his administrator wished to get rid of that decree, and a revival was necessary, it was his business to revive. If the decree of this court was a nullity, still the decree of the court below remains in full force. But both are valid, and the assets of Alexander Shepherd bound. Even if there had been any erroneous proceedings, it was proper to file a supplemental bill to get rid of such erroneous proceedings, and obtain the benefit of the decree. This has been done, and the proceedings on the supplemental bill are regular.
    Taylor had only a right to recover the unadministered assets. Wernick’s adm’r v. M’Murdo &c., 5 Rand. 51. There is nothing to shew that there were any assets unadministered, but abundant proof to shew that what he did recover was administered assets. The decree in favour of the legatees was itself an administration of the assets. They were then the property of Alexander Shepherd. And if his administrator afterwards assented to a decree in favour of Taylor, it was an assent to give up so much of Shepherd’s individual property, At all events, this assent could not affect the interests of the plaintiffs, 117 who had a personal ^decree against Shepherd. As it regards the plaintiffs, who were no parties to Taylor’s suit, the whole proceedings in it were nullities. They have a right to phrsue the assets of Shepherd until their claim is satisfied. And it is right it should be so. Taylor never could have recovered these assets, if Shepherd’s administrator had made that defence which was in his power. He had only to reply the fact that a personal decree had been rendered against his decedent. Had that fact been stated, the county court of Orange would never have decreed against him.
    In the case Ex parte Lyons, 2 Leigh 761, it was settled unanimously by the general court, that no court could grant adminis.tration de bonis non except the court which originally granted administration. And there is nothing in Eisher v. Bassett in conflict with this doctrine. Here, jurisdiction having been properly exercised in Orange, the court of Hanover had no jurisdiction to grant administration de bonis non, and its grant is not voidable, but void. It is questionable, to say the least, whether the sureties of Taylor are liable. At all events the plaintiffs are under no necessity to look to them first.
    Lyons for Pendleton’s administrators.
    The general court and the court of appeals have come to the same conclusion as it regards this cause. Neither has maintained that if administration be granted one day by an improper court, and the administrator dies the next, the proper court cannot then grant administration. The language of the decision in Ex jjarte Lyons, 2 Leigh 761, shews that the general court thought there must be a valid grant of administration by one court, to prevent another from granting" administration de bonis non. And in Eisher v. Bassett, it was not considered by any of the judges that the exercise of jurisdiction by the improper court would prevent the exer-118 cise of it *‘by the proper court: the only difference of opinion between the judges was as to what should be done to restore the jurisdiction of the latter. There certainly was no difference of opinion on the proposition, that if Scott had then been dead, the grant of administration by the general court would have been valid.
    Taylor for Darracotl and Madison’s administrator.
    If the court of Orange had jurisdiction to grant administration, the grant by the court of Hanover must, in the nature of things, be void. It would be extraordinary if, after a valid grant by one court, there could be a new grant by another court, because part of the estate remains unadministered. Originally the administrator was the bailiff of the ordinary, his mere agent to do what the ordinary might do in person ; and there might be grant after grant, on the principle that an agency may be revoked and a new agent appointed. In the reign of Henry 8, the power of the ordinary in this respect was restrained; and in England since that time, there is no power, after one grant is made, to make another. So it is here. No instance is adduced in which it has been held, either in England or this country, that after a grant by one court or jurisdiction, administration de bonis non may be granted by another. No effort is known to have been made to obtain such a grant of administration de bonis non, except in Ex parte Lyons; and the application there was unanimously rejected. Such a grant must be extremely inconvenient, and there is no authority for it in the act of assembly, or any where else. Upon the death of the first administrator, the power results— leaps back to the hand that granted it; which may thereupon grant administration of the goods remaining unadministered. 1 Wms. on Ex’ors 292. The power, once rightfully exercised, results not to any and every authority which might originally have made the grant, but to that from 119 which the 'xoriginal grant proceeded. It is said that the grant, being by a court of competent jurisdiction, must be valid. This takes for granted that Hanover court had jurisdiction. Let it be conceded that to some purposes every county and corporation court has jurisdiction in cases of probat and administration ; yet a county or corporation court cannot have greater jurisdiction in such a case than the general court would have had. And the general court has said that it has none. Here, it is true, the grant is in the form of an original grant. But if it would not have been valid in the form of a grant de bonis non, it cannot be valid in a different form. The error in the form of the grant cannot make that valid, which, if the record had spoken truly, would have had upon its face a death warrant. It is said also, that the question in this case has been decided in Eisher v. Bassett. But that is not so. Eor there the question as to the effect of the grant of the general court was not necessary to be decided. That case is certainly no authority to uphold the jurisdiction of the county court of Hanover; no authority to shew that after a grant by one court of original jurisdiction, which was valid, a grant by another of administration de bonis non is valid also.
    Stanard for Shepherd’s representatives.
    Is it competent for the sureties of William D. Taylor, in the face of their own bond, to question the authority conferred upon him, any more than he himself could question it? If they are entitled to make the objection in any form, are they entitled to make it in this form, — in a collateral proceeding? It is said that the grant to Taylor is void, and that all proceedings by him under it are null. On what ground is this to be maintained? Suppose the grant, on its face, had been of administration de bonis non: if the decision in Eisher v. Bassett ascertains any thing, it is that such a grant would have been voidable, 120 *not void. Eor the " question as to jurisdiction to grant administration de bonis non, is not materially different from the question as to jurisdiction to grant original administration. In either case, if there is a subsisting valid grant by one court, there cannot regularly be a grant by another. And in each it must be shewn that there was a subsisting valid grant, to make the subsequent grant invalid. The only point on which the judges differed in Eisher v. Bassett was, as to the manner in which the authority may be revoked while there is a subsisting administrator. If the case was here presented of a grant to Taylor while the administrator to whom Orange court made the grant was alive, it would be the question upon which judges Tucker and Parker differed. But this is not the case. Here there was no party to summon, no party to cite. [Taylor. Upon the supposition that this was an application to Hanover court to grant administration de bonis non, the propriety of the grant by that court would depend, upon the question whether Hanover court had itself made a previous grant.] Stanard. Still it would depend upon the question whether the previous grant was valid. [Allen, J. I understand mr. Taylor to contend that the grant of administration de bonis non is of itself a recognition of the validity of the previous grant..] Stanard. But in this case there was an application by Taylor for, and a grant to him of, original administration. ' And the question is, -whether the grant is void. Suppose it had been made to appear at the time of Taylor’s application, that Zachariah Burnley resided in Hanover, where he died, and that Hardin Burnley had by mistake procured a grant of administration from Orange court; might not the court of Hanover have made the grant? Could any other course have been pursued when the first grant had terminated by death? Surely it could not be necessary or proper to go to the court which had usurped jurisdiction. In 121 Lyons’s case, *if the general court had been of opinion that the original . grant was not valid, it would not have refused to make a new grant. If the mere circumstance that the judgment has not been in form revoked is a reason why no other court can grant administration, then the jurisdiction of every other court is ousted. Bor there is no mode of revoking the first administration, when the administrator is dead. [Allen, J. Suppose a grant by an improper court to one who dies, and then a grant by a proper court, after which administration de bonis non is granted by the court which first granted administration.] Stanard. Then the last grant, being made when there we're rights subsisting under the grant by the proper court, would be void. 1 :
    Supposing the grant to Taylor to be valid, he, qualifying as a full administrator, might recover any assets in the hands of the representative of a former administrator. There is no limitation upon his powers, except when he attempts to recover back what may have been appropriated by a former administrator in payment of debts. Taylor therefore had clear authority to receive from Shepherd, and his sureties must be bound. In this point of view, the question in Wernick’s adm’r v. M’Murdo &c. does not arise. But suppose Taylor had only authority To receive unadministered assets, are not the sureties bound for assets which he has received? They were claimed by Taylor as unadministered assets, and recovered by him as such. Does it lie in the mouth of Taylor, or in the mouths of his sureties, to say that these were not un-administered assets, against the admission on the record? If, when an administrator recovers a debt, his sureties cannot go into evidence to shew that it ought not to have been recovered, neither can the sureties in this case go into evidence to shew that this money ought not to have been recovered.
    Shepherd’s representatives ought in no event to be compelled to pay over a 122 second time the money they *have already paid to Taylor. Suppose there had been no decree against Alexander Shepherd, but he had denied pending the suit, and the plaintiffs had discontinued . their suit as to his representatives and re- < Vived it against Taylor, and in that state ; of things Taylor had sued Shepherd’s representatives and recovered the assets of ! Zachariah Burnley’s estate; could Shep- . herd’s estate be held liable to pay that i 1 money over to the plaintiffs? Surely not. The opinion intimated by judge Green in Wernick’s adm’r v. M’Murdo &c., 5 Rand. 92, 3, so far as it goes, is against such liability. And Hefferman’s adm’r &c. v. : Grymes’s adm’r &c., 2 Leigh 512, shews, that though a legal conversion of assets by the first administrator has taken place, a court of equity will still look at the real nature of the case, and hold the administrator de bonis non entitled to receive such assets, if there was no intent on the part of the first administrator to apply them to his own use. It has been argued that the decree against Alexander Shepherd, being personal, discharged the estate of Zachariah Burnley, and substituted a mere demand against Alexander Shepherd’s estate. Suppose that after Shepherd’s administrator had paid over to Taylor, the estate and representatives of Shepherd had become insolvent; will it be contended that the legatees would in such case have had no right to look to the estate of Zachariah Burnley in the hands of Taylor? But here the plaintiffs themselves, by their conduct in the suit, have been the cause, and the sole cause, of Shepherd’s representatives parting with the money to Taylor. If the plaintiffs had revived their appeal against Shepherd’s representatives, and prosecuted the claim against them, instead of discontinuing the pursuit of that estate, and leading the representatives to believe that they were discharged of accountability to the legatees, and accountable only to the administrator de bonis non, it is not to be conceived that the payment would ever have been 123 made to that administrator. *And now, after the acts of the plaintiffs have encouraged and the representatives of Shepherd to part with the assets in their hands to Taylor, it would be utterly at variance with every principle of equity to hold them liable. Let it be admitted that the discontinuance as to Shepherd’s representatives was the result of an erroneous opinion respecting the law, still the estate of Shepherd ought not to suffer for a mistake committed by the plaintiffs in the management of their own suit.
    Leigh for the legatees.
    If the decree of . < ; ! . i May 1818 had been acquiesced in, the plaintiffs might, and no doubt would, have commenced proceedings against Hardin Burnley’s administrator, to recover the balance of their legacies after crediting what was decreed against Alexander Shepherd; and they were entitled to recover, if assets enough came to Hardin Burnley’s hands to pay the balance. But Alexander Shepherd immediately appealed from the decree, and as the appeal brought up the question as to the extent of liability of Zachariah Burnley’s estate, and so put in suspense the claim of the plaintiffs to recover the balance, they could not, in this state of things, proceed with effect against Hardin Burnley’s estate. Pending the appeal, Alexander Shepherd died; but so far as the decree aflEected him personally, the appeal did not abate. This is shewn by the case of Garlington v. Clutton, cited by mr. Harrison ; Shepherd having agreed that no abatement should take place. In consequence of this agreement, his representatives were bound to take the same notice of the appeal as if process of scire facias had regularly issued against them to revive it.
    If Zachariah Burnley received assets enough of John Burnley’s estate to pay the legacies given by John, he became a debtor to the legatees. If Hardin Burnley received assets enough of Zachariah Burnley’s 124 estate to *pay the debt of Zachariah Burnley to the legatees, Hardin Burn-ley was their debtor for the legacies, and the debt was of the first dignity against his intestate’s estate. If Hardin Burnley’s representatives, or any of them in succession, received assets enough of Hardin Burnley’s estate to pay the legacies, they each in succession became ' debtor to the legatees, and the debt was of the first dignity against Hardin Burnley’s estate. And if Alexander Shepherd, as administrator de bonis non of Zachariah Burnley, received assets of Zachariah Burnley’s estate, he became a debtor to the legatees to the extent of those assets. These propositions are unquestionably correct; and it is just as unquestionable that Alexander Shepherd, as such administrator de bonis non, did receive assets, and that Henry Pendleton, as administrator de bonis non of Hardin Burnley, received abundant assets. Nor is it any objection to the proposition, that they suppose Hardin Burnley was administrator of Zachariah Burnley, and Alexander Shepherd administrator de bonis non. If it could now be shewn that administration was irregularly granted on Zachariah Burnley’s estate, first to Hardin Burnley and afterwards to Alexander Shepherd, this would be of no avail to the representatives of Shepherd, because there was a decree against him which has been affirmed, and even if that decree were erroneous, his representative cannot be permitted now to question it. Nor would it avail the representatives of Pendleton ; because Hardin Burnley had received assets of Zachariah Burnley’s estate, converted them, and become a debtor to the legatees; and though the grant of administration to Hardin Burnley were void, though he were regarded as an executor in his own wrong, yet he would be liable to the legatees in the same manner as a rightful executor, his executor or administrator would be chargeable in the same manner as he might have been, (1 Rev. Code of 1819, ch. 104, g 66, p. 390,) and the debt due from 125 him would, *by force of the statute of Virginia, be a debt of the first dignity. Sherman v. Christian and others, 6 Rand. 49. But in truth there is no reas'on to doubt the jurisdiction of the court of Orange — no ground to say that its grants were irregular. And though they had been irregular, they would not have been void, but voidable only upon appeal or citation. Seeing then that Alexander Shepherd and Henry Pendleton owed the legatees these debts, the question is -whether our debtors without our knowledge or consent, by means of a decree in a proceeding to which we are no parties or privies, can shift the debt they owe us from themselves to another person, and either deprive us of all recourse against them, or compel us, in spite of ourselves, to resort to that other person in the first instance.
    If Taylor was not administrator — if the grant to him was merely void, it is the same thing as if Shepherd’s administrator and Pendleton had paid to any third person without pretence of right. It is said that Taylor was full administrator. There was, it is true, a blunder in the form of the grant; but they were not deceived by it. Taylor claimed as administrator de bonis non; and there were previous administrations, so that he could only be administrator de bonis non. But take it that the grant to Taylor was only voidable, not void, or even that he was a rightful administrator, and let us see whether this will affect the liabilities of the parties.
    I. As to the payment by William Shepherd administrator of Alexander Shepherd to Taylor, of money which had been decreed to us. Is it possible that he could rightful'y pay money, actually decreed to us against his decedent, to any body else, so as to exempt himself from liability to us? It is objected that the appellees have affirmed the propriety of his payment to Taylor, for they claim money which Alexander Shepherd as administrator de bonis non of Zachariah Burnley had 126 received *of John M. Sheppard the representative of the previous administrator. The money which Alexander Shepherd received was assets of Zachariah Burnley’s estate in his hands, no matter how he got it. We had the right to claim it of him, or, if he failed to pay, then of John M. Sheppard. Where A. owes a debt to B. and pays it to C., B. may sue A. for the debt, or may sue C. for money had and received. If the proceeding be in equity, and both parties before the court, the court may decree against A. the original debtor, and give him a decree over against C. ; or, if there be no doubt of the solvency of C., may decree directly against him. It is farther objected that William Shepherd was decreed to pay the money by the court of Orange. But what was the character of that decree? We were not parties to it; and William Shepherd knew that the money had been decreed to us. He was bound to know the fact, and that we claimed against him, — bound to know all the circumstances. Yet, it is said, he acted in good faith and without collusion. He did not act without favouritism. Taylor had in equity no pretext of right to recover this money, but on the ground that it was necessary for debts. There was no debt but that due to us. Yet our claim was resisted, and the money paid to Taylor, that he might get a commission on the amount, or for some other reason equalljr insufficient.
    
      II. As to the payment by Henry Pendle-ton. He also consented to a decree in fa-vour of Taylor, with knowledge of our claim to the money, and of there being no other debt against Eachariah Burnley’s estate. He paid to Taylor, in order that Taylor might account to us. He had no right to practice this favouritism; no right to give Taylor a commission. And his representatives .are not entitled to exemption from liability by any thing in judge Green’s opinion in Wernick’s adm’r v. M ’Murdo &c., 5 Rand. 92, 3. All that a suit could do would be to give notice of the claim. 127 And if Pendleton knew of*the claim, he is as little entitled to the benefit of the exception as if there had been a suit.
    We insist then, upon the authority of Wernick’s adm’r v. M’Murdo &c. that notwithstanding the payments to Taylor, and even though he were a rightful administrator, the representatives both of Pendleton and Shepherd remain liable' to the legatees. '
    C. Johnson in reply.
    It is contended that the grant of administration to Taylor was void, because granted by the county court of Hanover, when the prior grants of administration were by the county court of Orange; and Ex parte Lyons, 2 Heigh 761, is relied upon. That case merely decides that the court which granted the original administration is the proper court to which the application should be made for administration de bonis non. It does not decide that a grant de bonis non, when the administration is vacant, is a nullity if made by a court different from that which granted the first administration. Suppose that the general court had in fact granted the administration asked for in the case Ex parte Lyons; had judged erroneously as to its own jurisdiction : could it be pretended that such grant by the general court would be void, and the sureties of the grantee not bound for his due administration? The case of Eisher v. Bassett and others settles the law of the subject, and it would be supererogatory to argue in support of that decision, especially as the present court is composed of only the same number of judges that sat in that case. It is referred to and commented upon in 3 Rob. Pract. 423-28, and from what is there said, as well as from the recollection of those who took part in the case, we know it was elaborately discussed and maturely considered. Regarding Eisher v. Bassett and others as authority, we need only enquire what is established by it. It proves that the grants by the county court of Orange to Hardin Burnley and Alexander Shepherd 128 *"were valid grants, until avoided in a regular way on appeal or citation. These grants were never avoided, but they ceased by the death of the grantees. And when the county court of Hanover was-applied to by Taylor for letters of administration, that court was called upon to consider and decide whether the facts were such as to found its jurisdiction to make the grant'; and in granting the letters, it did decide (as mr. Stanard has strongly and clearly shewn) that very question. The judgment of Hanover court is precisely within the reason and principle of Eisher v. Bassett and others, and even if capable of being avoided, is valid until so avoided. If the grant by Hanover court had been in terms a grant of administration de bonis non, it would still not have been void; for a grant of administration de bonis non never shews on its face when or where the former .grant was made, and the inference from every grant de bonis non is regularly that the former administration was granted by the same court. The only form of a grant of administration de bonis non which could with any plausibility be regarded as a nullity, would be one shewing on its face that a different court had granted the first administration. But that is not shewn on the face of the grant to Taylor by the court of Hanover, nor does the grant even profess to be a grant of administration de bonis non. Even if it were conceded that the grant of administration to Taylor was by a court which had not jurisdiction, it would by no means follow that his sureties are hot bound for his due administration of the assets. Such consequences would result from holding that sureties for an administration are discharged by a defect of jurisdiction in the court which makes the grant, that it would seem better to apply the doctrine of estoppel, and hold them precluded from denying that the party for whom they are bound was administrator. If in this case the sureties of Taylor cannot 129 deny that he *was administrator, they cannot be heard to deny that the money which he received as administrator was assets of Zachariah Burnley’s estate.
    Upon the question whether the payments by William Shepherd as administrator of Alexander Shepherd, and by Henry Pen-dleton as administrator of Hardin Burnley, were valid payments as against the legatees, Johnson sustained and enforced the views presented by Patton and Stanard.
    
      
      He had been counsel for the appellants.
    
    
      
      Jurisdiction — County Courts — Grants of Administration. — it is well settled, that the county court is a court of general iurisdiction in regard to probates and the grantof administrations; that it has jurisdiction in regard to the whole subject-matter; and that though it may err in taking jurisdiction of a particular case, yet the order is generally not void, but only voidable on citation or appeal, and cannot be questioned in any collateral proceeding. Fisher v. Bassett, 9 Leigh 119; Burnley v. Duke, 2 Rob. 102; Schultz v. Schultz, 10 Gratt. 358; Cox v. Thomas, 9 Gratt. 323; Hutcheson v. Priddy, 12 Gratt. 85; Andrews v. Avory, 14 Gratt. 229.
      The principal case is cited on this point in Schultz v. Schultz, 10 Gratt. 379, 380, 382; Hutcheson v. Priddy, 12 Gratt. 90; Andrews v. Avory, 14 Gratt. 236; Gibson v. Beckham, 16 Gratt. 326; Smith v. Henning, 10 W. Va. 617.
      
        Szefoot-nota to Andrews v. Avory, 14 Gratt. 229.
      In Fisher v. Bassett, 9 Leigh 119, it is decided that a grant of administration by the court of a county or corporation that was not authorized to grant it according to the provisions of the statute (the decedent in that case having been a foreigner, and having died abroad, and who had no residence in the corporation by the court of which the administration was granted, and no estate of any kind there), is not void, but voidable only: And it was accordingly held in that case that acts of and dealings with such administrator consummated before the letter granted to him were revoked or superseded could not be called in question. The doctrine of this case is repeated and affirmed by the principal case.
      Same — Same—Same.—In Ballow v. Hudson, 13 Gratt. 681, the court said: “The cases in this court in regard to grants of administration, although not bearing directly upon the question here, yet seem to illustrate the general principle that the judgment of a court of general jurisdiction over the subject is conclusive until it is avoided, or expires by its own limitation; and this although the facts of the particular case were not such as to give the court jurisdiction over that case. Fishery. Bassett, 9 Leigh 119; Burnley v. Duke, 2 Rob. R. 102.”
      Grant of Administration — Jurisdiction-Validity of Grant. — It was held in the principal case, in conformity with Fisher v. Bassett, 9 Leigh 119, that where administration and administrations d. b. n. were granted by a court which, upon the facts, should not have taken jurisdiction, the grants were valid, the orders standing unreversed, and the grants unrevoked. And further that when the grant to the administrator d. 1). n. expired by his death, and the estate was unrepresented, it was competent for the court which might in the first instance have rightfully exercised jurisdiction, to make a valid grant; and the sureties in the last administration bond were bound.
      Liability of Sureties of Administrator d. b. n. — it was also held in the principal case, that though an administrator de bonis non cannot recover of a former administrator assets converted by him (because they are not unadministered assets, and therefore not within the scope of the commission of the administrator de bonis non), yet if he actually receive them, he and his sureties are accountable therefor. See the principal case cited in Andrews v. Avory, 14 Gratt. 244; Gilmer v. Baker, 24 W. Va. 92; Hooper v. Hooper, 32 W. Va. 528, 9 S. E. Rep. 938.
      Wills — Probate Proceedings — Conclusiveness of.— The principal case is cited in foot-note to Ballow v. Hudson, 13 Gratt. 673, and foot-note to Norvell v. Lessueur. 33 Gratt. 222.
    
   ALLEN, J.,

delivered the following as the opinion of the court:

The court is of opinion, that as the court of Orange county had general jurisdiction to grant administration when a proper state of facts existed; whether the court erred or not, in determining that the facts were proved upon which the power to grant administration in the particular case depended, is not to be enquired into collaterally. Until such orders or grants were reversed or revoked, they conferred on the grantees all the powers of rightful administrators. The court is further of opinion, that when the grants expired by the death of the grantees, and the estate was unrepresented, it became the duty of some court to appoint an administrator: that if the first appointment had been made by a court having no jurisdiction, such appointment did not oust the jurisdiction the proper court; but that when the first appointment had been revoked or the order reversed, or when the grant expired by the death of the grantee, and there was no conflicting right in existence, it was competent for the court which in the first instance might have rightfully exercised jurisdiction, to grant administration. Whether the particular state of facts existed which would have authorized such court to grant administration original^', was a matter to be en-quired into and decided by the court; and the decision, if erroneous, would be voidable only, *and not void. The court is therefore of opinion that the grant of administration made by the court of Hanover to William D. Taylor on the estate of Zachariah Burnley, when there was no conflicting administration in existence, and which has not been reversed or revoked, is to be held valid, and the said William D. Taylor and the sureties in his official bond are responsible for his acts.

The court is further of opinion that where, as in this case, the administrator sues for and recovers money, debts or effects as the assets of the estate, he must account for them; and his sureties, who have covenanted for his faithful administration of them, are liable if he fails so to account. The court is therefore of opinion that the said administrator Taylor and his sureties were liable to the appellees, for the assets received of the representative of Hardin Burnley’s estate and' the representative of Alexander Shepherd’s estate.

The court is further of opinion that as the administrator de bonis non cannot compel the representative of a former administrator to account for the converted assets, it would have been competent for the ap-pellees, if the assets of Zachariah Burnley had been converted by his first administrator Hardin Burnley, to proceed against his representative for satisfaction. But as the appellees did not proceed against such representative, but, after the death of said Hardin Burnley, dismissed his representative from the suit, and revived the same against the administrator de bonis non of Zachariah Burnley, it was lawful and proper for the representative of Hardin to Iransfer and pay over to the representative of Zachariah Burnley for the time being, against whom the appellees were proceeding, the unapplied assets of Zachariah Burnley ; and that such payment, made (as in the present case) in good faith and under the sanction of a decree of a court of competent jurisdiction, is a complete protection to the '"'representatives of Hardin Burn-ley’s estate for all sum so paid over to Alexander Shepherd and William D. Taylor, the succeeding ■ administrators of Zachariah Burnley.

The court is further of opinion, that as the matter in controversy in the original cause was as to the extent of liability of the estate of Zachariah Burnley on account of the assets of John Burnley received by him, it would not have teen proper for the representative of Alexander Shepherd, who held in his hands the admitted unapplied assets which his intestate had received from Hardin Burnley’s representative, to pay over those assets to the appellees until the appeal had been disposed of; as, if the decree had been reversed, he would in that event have been responsible to the proper distributees of Zachariah Burnley for the amount. The court is further of opinion that though the appellees had obtained a decree against said Alexander Shepherd as administrator de bonis non of Zachariah Burnley, such decree was personal, only in respect to the assets admitted to be in his hands, and which it was nowhere alleged that he had converted or wasted. That when such un-applied assets came to the hands of his administrator, however the rule might be at law, in equity they should be treated as the unadministered assets of Zachariah Burn-ley : and that when the administrator of Alexander Shepherd, in pursuance of a decree of a court of competent jurisdiction, paid over and transferred to the representative of the said Zachariah Burnley such assets, such payment, if made in good faith, should protect the estate of Alexander Shepherd from the claim of the appellees. That in this case no collusion or bad faith is imputed or proved; but on the contrary, the course of the appellees throughout indicated to all concerned, that they looked to the representative of Zachariah Burnley for the time being, and to him alone, for satisfaction of their claim. They *had instituted their suit against Zachariah Burnley: on his death, they revived it against Hardin Burnley his administrator: on his death, they dismissed the representative of Hardin Burnley from the cause, and revived it against Alexander Shepherd administrator de bonis non of Zachariah Burnley, who thereupon proceeded to collect from the representative of Hardin Burnley the assets of Zachariah Burnley: and on the death Alexander Shepherd, they revived against William D. Taylor administrator of Zachariah Burn-ley, who proceeded to collect the assets from his predecessors in the administration. Under such circumstances it would be against equity to compel the representatives of Alexander Shepherd again to pay the amount.

The court is therefore of opinion that the bill should have been dismissed as to the representatives of Alexander Shepherd, but without costs. That the bill should have been dismissed as to the representatives of Hardin Burnley, but without costs, unless the appellees had desired an account of the administration of Hardin Burnley on Zachariah Burnley’s estate, for the purpose of shewing that a greater amount of assets of the said Zachariah Burnley had come to the hands of Hardin Burnley, than had been paid over to the said Alexander Shepherd and William D. Taylor, his successors, in the administration on Zachariah Burn-ley’s estate: and that the appellees are still entitled to such an account, if desired. That a decree should have been rendered-against William D. Taylor and his sureties in the administration bond, or their representatives, for the amount of assets received by said Taylor of Alexander Shepherd’s representative and Hardin Burnley’s representative, together with any other assets of Zachariah Burnley which came to the hands of Taylor: and that leave should have been given the appellees to amend their bill, and make any other person or persons *parties, who may have improperly received from said Taylor the assets of said Zachariah Burn-ley’s estate.

*Note by the reporter. Since the payments were made, the validity of which was discussed in this case, an act of assembly has been passed to authorize an administrator de bonis non to receive assets from the executor or administrator of a prior executor or administrator. The date of the act is the 6th of April 1839, and it will be found in the session acts of that year, p. 44, ch. 70.

It is therefore considered that the said decree be in all things reversed with costs, and the cause remanded, to revive and make the proper parties, and to be proceeded in according to the principle of this decree.  