
    *Millers v. Catlett.
    October Term, 1853,
    Richmond.
    Executors and Administrators — Action on Administration Bond — Evidence—Case at Bar. — In an action for a devastavit by a creditor of a testator against the executor and his sureties, the settled account of the executor was introduced, which showed a credit to the executor of money paid a legatee. The executor proposed to show by parol proof, that the legatee phid was not the legatee of his testator, but of a person of whom his testator was executor, and had received sufficient assets to pay the legacy, but had not done it. Held: The fact of such a legacy, and that the executor’s testator was the executor, should be proved by the will and the record of his qualification; and parol evidence was inadmissible for that purpose.
    This was an action of debt, at the relation of the plaintiffs in error, on the official bond of Alexander Catlett executor of John Catlett senior. The declaration averred the recovery of a judgment by the plaintiffs in error against the executor on a single bill of his testator, and a return of nulla bona on the execution. Issue was joined upon the plea of conditions performed; and on the trial before the County court there was a verdict and judgment for the plaintiffs in error. The case was carried by supersedeas to the Superior court, where the judgment of the County court was reversed and the cause remanded to the County court for a new trial. To this judgment of reversal the plaintiffs in error obtained a supersedeas from this court.
    On the trial of the cause in the County court, the controversy turned upon the state of the executor’s accounts; and two exceptions were taken by the defendants in error to decisions of the court rejecting evidence offered by them. The plaintiffs in error offered in evidence the executorial accounts of the executor as settled by commissioners of the County court, which had been returned and approved and ^recorded.
    Upon the first of these settlements there was a charge under the head of “Paid to legatees,” to said John A. Catlett six hundred and ninety-seven dollars and thirty-three and three-quarter cents. The defendants thereupon offered to prove to the jury by parol evidence, (having produced a witness for that purpose,) that said sum was paid to John A. Catlett as a legatee of Joseph Catlett deceased, on whose estate the said John Catlett, senior, the testator of the defendant Alexander Catlett, had administered, and that the said John Catlett senior had assets to have paid the legacy, but omitted to do so; which evidence the court on the motion of the plaintiffs in error excluded from the jury. The second bill of exceptions presents the same question as that raised by the first.
    G. N. Johnson and Cooke, for the appellants.
    There was no counsel for the appellee.
    
      
      See monographic note on “Executors and Administrators”: also, monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 121.
    
   AEEEN, J.,

delivered- the opinion of the court:

After stating the case, he proceeded:

We do not perceive any valid objection to the decision of the County court rejecting the evidence. If John Catlett senior had been the administrator of Joseph Catlett, and instead of paying- the debts and legacies due from that estate, had wasted the assets, it would have been a debt from his estate of the highest dignity. But no foundation was laid for the introduction of parol proof of the facts relied on. The will of Joseph Catlett, or an official copy of it, would have been the best evidence that such a legacy had been bequeathed to John A. Catlett. And the order of court granting letters of administration upon the estate of Joseph Catlett to John Catlett senior, should have been produced to show his qualification. If the facts existed they could readily have been established by copies from the record; and the secondarj evidence '’-'was properly rejected by the County court. We are therefore of opinion that the judgment of the Superior court reversing the judgment of the County court was erroneous. It is therefore considered that the same be reversed with costs. And this court proceeding, &c., it seems to the court here that there was no error in the judgment of the County court; it is therefore considered that the same be affirmed.

Judgment reversed.  