
    Turner Bryan, Ordinary, vs. William Blakeney.
    In an action by a distributee, against the surety of an administrator, the defendant cannot falsify the amount decreed by the Ordinary to be due, by showing outstanding debts against the estate, even in favor of himself.
    BEFORE RICHARDSON, J„ AT CHESTERFIELD, FALL TERM, 1836.
    This was an action on the bond of Wm. Blakeney, surety of Erankey Hancock, administratrix of Burrell Hancock, deceased. The administratrix bad been summoned by the Ordinary to account, but made default: and the Ordinary decreed against her for one thousand six hundred and fifty-five dollars, — one third, five hundred and fifty-five dollars, to herself as widow of Burrel Hancock, two hundred and twenty-two dollars and twenty-nine cents to each of her five children. Mrs. Hinson (one of the five) brought tbis action to recover her dividend of two hundred and twenty-two dollars and twenty-nine cents, and subsequent interest, against the defendant, (the surety of the administratrix). Blakeney set up the defence, that the amount decreed by the Ordinary was more than the estate of B. Hancock amounted to. The administratrix bad made no return or account to the Ordinary: and be accordingly took the amount of the estate sales, and the schedule of the debts due, as the sum in her bands. Hnder the authority of the Ordinary vs. Oondy, 2 Hill, 333, the question of the amount of the estate was submitted to assessment by the jury in favor of the surety. The evidence proved, 1st. That several small debts bad never been paid to the administratrix; that some others were desperate; one debtor bad ran off, and one or two were insolvent. 2d. That the administratrix bad paid away some money to the creditors of the estate. But 3d. The evidence went on to show that there was a judgment of P. May against the estate, that might possibly be still due; and 4th. That the defendant bad himself' discharged a note; for which, as was alleged, be was only security to B. Hancock. The defendant insisted that both these last-mentioned amounts ought to go to diminish the aggregate amount in the hands of the administratrix, as well as the debts she had not collected, and the moneys she had disbursed. His Honor charged the jury that the object before them was to reconsider the state of accounts between the administratrix and the estate. That the defendant might surcharge the credits to the administratrix, by showing that she had actually disbursed money not allowed by the decree, and might falsify any debts against her. These were all facts for their exclusive determination. But that the evidence ought to be very clear before they should do either; upon these points he thought the evidence was perhaps satisfactory. But with respect to the judgment against the estate, or any debt or claim against it, either by Blakeney or any one else, they were not to enter into the calculation of the jury; that such questions could be decided only by suit between the supposed creditors and the administratrix. They might or might not be due; the jury could not marshal the assets, give any preference, or distribute the estate; their business was to measure the amount in the hands of the administratrix, and give the plaintiff her dividend of one-fifth of two-thirds of that amount, and leave supposed creditors to pursue their own claims. If there were any creditors, they could find out how to get a preference to the claims of the heirs at law, and obtain payment of the administratrix. That' the defendant stood in this respect in the situation of one of the rest.of the creditors ; the jury could not undertake to decide on his claims as a creditor. And he repeated, that the object in this suit was to come at what was due to the plaintiff by determining what the administratrix had received, and what she had paid away; that the amount was proven prima facie by the Ordinary’s decree. But that the jury were at liberty to -falsify the amount in favor of the surety; who had not been a party in the suit before the Ordinary;' keeping themselves nevertheless strictly to the inquiry, what had been the receipts,, and what the sums paid away by the administratrix, in order to come at the net balance in her hands, and for that balance the surety was liable.
    The jury found for the heir two hundred and twenty-six dollars, having evidently allowed the defendant the benefit of all disbursements made by the administratrix, all the debts proven not to have been paid to her, or not really due, or desperately bad: but disallowing any deduction for any supposed outstanding claims against the estate of B; Hancock, either in favor of the defendant or any one else.
    The defendant appealed, upon the following grounds:
    1st. Because bis Honor charged the jury that they should deduct nothing from the gross amount of the estate, in ascertaining its real value, except what it was proved that the administratrix did not and could not collect, and what she bad paid away.
    2d. Because bis Honor charged the .jury that no outstanding debts against the estate of B. Hancock should be deducted from the bulk of the estate before they could proceed to ascertain the proportion to which Hinson and wife were entitled; they being distributees entitled to one-fifth of two-thirds of the estate after the payment of the debts.
    3d. Because the debts due to Wm. Blakeney, the defendant, although they bad not been paid to him by the admin-istratrix, and be bad not recovered judgment upon them, should have been deducted from the gross value of the estate of B. Hancock, in a suit by one of the distributees against said Blakeney as surety to the administration bond, and the distributee is entitled to one-fifth of two-thirds of the amount remaining, after such deductions are made, whereas bis Honor charged the jury to the contrary.
    4th. Because the verdict of the jury was contrary to law and evidence.
    
      Graham & Evans, pro motion.
    
      Clinton & Hanna, contra.
   Curia, per Richardson, J.

The Court concurs with the presiding Judge, and the appeal is dismissed.  