
    George Ross, adm’r. de bonis non of Jonathan Sutton v. Alexander Sutton.
    Columbia,
    Dec. 1828.
    An administrator de bonis non cannot maintain an action upon a contract, made by the first administrator, for the sale of goods belonging to the estate of the intestate. The contracts of an administrator are personal, although they relate exclusively to the estate of his intestate; and there is therefore no privity between persons contracting with him, and his successor.
    Tried before Mr. Justice Gaillard, at York, Fall Term, 1828.
    This was an action of assumpsit, to recover the price of certain goods, alleged to have been purchased by the defendant at a sale of the intestate’s effects, which had been made by James J. Sutton, who preceded plaintiff in the office of administrator of Jonathan Sutton. Immediately after the sale, and before the goods sold were paid for, James J. Sutton had been cited before the ordinary to give additional security on his administration bond; and upon his failure to do so, his administration was revoked, and administration de bonis non committed to the plaintiff, who thereupon brought this action.
    The presiding Judge refused a motion for nonsuit; and the jury found for the plaintiff. The defendant now renewed his motion for a nonsuit in the Court of Appeals ; and moved also for a new trial on grounds arising out of the trial below, which, as they were not noticed by the Court, it is unnecessary to specify.
    Williams, for the motion,
    cited Seabrook ads. Williams, 3 M’C. 371.
    Clendlven, contra.
    
   Nott, J.

delivered the opinion of the Court.

An administrator is the representative of the intestate, for the purpose of administering the goods and effects which belonged to the deceased in his life time ; and the personal estate, ill contemplation of law, belongs to him. An administrator de bo-nis non is intitled only to the goods left unadministered by the first administrator. A sale by an administrator is an administration of the estate pro tanto: the property is changed, and no longer belongs to the estate of the deceased. A promise to pay to an administrator, is a promise to him in his individual capacity, in which he need not intitle himself administrator ; and there is no priority therefore between the debtor of the first administrator and the administrator de bonis non. There can be no doubt but that the first administrator may sue the defendant, as on a promise made to himself. He is also answerable to the administrator de bonis non for all the goods which he may have received of the estate.

The proceedings in this case are not before us ; and therefore we do not know what form of declaration has .been adopted. But the plaintiff must have declared either on a promise to himself, or on a promise to his intestate neither of which was supported by the evidence. The motion for a nonsuit ought therefore to have been granted. Motion granted.  