
    William Summers vs. Henry Tidmore, Adm'r.
    Where the plaintiff takes a decree against an executor or administrator, subject to a plea of plene administravit prater, he thereby admits that the administration has been correct up to that period. And any objection as to the non-return of any article in the inventory oug'hl to have been made by the plaintiff on the trial of the case, and cannot be excepted to on the trial of an action, upon such de-. cree, suggesting a devastavit. 
    
    Newberry, Spring Term, 1821.
    
    rp JL HIS was a sunpmary process, founded on a former decree of the Court of Common Pleas, for Newberry district, against the defendant, as administrator of Adam Tid more, deceased. After deducting those expenses which are to be first paid, it appeared in evidence, from the return made by the ordinary, that the amount of estate in the hands of the administrator was |§320 65 1-2. That the debts due by the estate amounted tog 553 58. So that the assets in the bands of the administrator fell short of what would have been sufficient for the extinguishment of the debts. It appeared also that none of the creditors were entitled to priority of payment. They all stood in the same degree. The plaintiff supposing that a judgment recovered would give him preference, instituted his action against the administrator, and recovered the decree on which the present process was founded 5 subject however to the plea ol'plena administravit prater, Including the costs of that suit, his proportion of the assets in the hands of the administrator amounted to 054 43. He actually received $57 17, being g>2 74 more than his proportion. In this action the plaintiff suggested a devasta-vit on the part of the defendant, in not having returned 300lbs. of seed cotton, which by carelessness or mistake had been left out of the inventory.
    The case, was tried before 'Mr. justice Gantt, who gave a decree in favor of the defendant.
    It was now moved that the decree be reversed, and tha.t the plaintiff be allowed to take judgment for the value of the cotton, supposed by the ordinary to be worth 09 and for the further amount of six dollars, which remained in the hands of the administrator unappropriated.
    
      
      
         See M'Dowell vs. Branham, 2 Nott & M'Cord, 572, R
    
   Mr. Justice Gantt

delivered the opinion of the court.

The 300 lbs. of seed cotton was in the hands of the administrator at the time of the decree, on which this action is founded. That decree was-taken subject to the plea of plene administravit prater. The plaintiff has therefore admitted that the administration had been correct to that period, and any objection in respect to the non-return of this cotton in the inventory, ought to have been noticed by the plaintiff in the trial of the first action. It is now too late to say that defendant had been guilty of a devastavit in not having returned it at that time. It is not pretended in this case that-the defendant has been guilty of any intentional misconduct. The plaintiff thinks himself entitled to the whole balance of 016, in exclusion of the other creditors, whose claims not having been reduced to judgments are thought to be barred by the statute of limitations.

But I do not think the plaintiff entitled to any preference. He stood on the same footing with the other creditors at the death of the intestate. They were by law to be paid off in equal proportion, and the plaintiff cannot by obtaining a decree, and thereby subjecting the estate to unnecessary costs, entitle himself to a preference over the Vest of the creditors. He ought to have been satisfied with having received his full proportion and more. The defendant is at perfect liberty, in my opinion, to make an honest and fair distribution of the small amount in hand amongst all the creditors of the deceased, notwithstanding the lapse of time; and this is the unanimous opinion of the court. The motion must therefore fail.

Oneal, for the motion.

Bauskct, contra.

Justices Johnson, Richardson and Colcock, concurred  