
    Richard E. Newcomb, Judge &c., versus Isaiah Wing et al.
    
    In stating as a breach of an administration bond, that the administrator did not inventory land which the intestate, in his lifetime, to defraud his creditors, conveyed to the administrator, it seetns it should be averred that the administrator was a party to the fraud or had knowledge of it.
    A suit in the name of the judge of probate upon the bond of an administrator of an insolvent estate, for not inventorying real estate fraudulently conveyed bv the intestate, cannot be sustained for the benefit of an individual creditor; hut if the administrator, upon notice, does not get license to sell such estate, or otherwise account for it, the judge may sue the bond for the benefit of all the creditors.
    This was an action of debt upon an administration bond, brought in the name of the judge of probate for the countv of Franklin for the benefit of Epaphroditus Champion.
    The defendants pleaded a general performance of the condition. The plaintiff replied, that B. Leonard the intestate, on the 27th of October, 1820, was seised in fee simple of certain parcels of land in Conway ; that on the 28th he fraudulently conveyed them to Wing (the administrator) with intent to defraud and deceive his creditors of their just debts ; that this real estate was at the time of Leonard’s death liable for the payment of his debts, and when administration was granted to Wing, on the 15th of July, 1823, the same real estate came to the knowledge and into the hands and possession of Wing as the estate of Leonard, and was liable by law to be inventoried as Leonard’s estate, and in case the personal estate were insufficient for the payment of his debts, to be administered by Wing for the payment of such debts ; that the personal estate was insufficient; that Wing represented Leonard’s estate to be insolvent; that commissioners were appointed ; that Champion’s debt was due on the 1st of October, 1820, and was proved under the commission and allowed; that the doings of the commissioners were returned into the probate court, ratified and approved ; that the estate of Leonard, exclusive of the real estate mentioned, was in fact insolvent ; yet that Wing, well knowing the premises, did not inventory the same real estate. To this the defendant demurred, and assigned causes of demurrer.
    
      E. H. Mills and Wells, in support of the demurrer,
    cited St. 1786, c. 55, § 1 ; Wildridge v. Patterson, 15 Mass. R. 148 ; Johnson v. Libby, ibid. 140 ; Freeman v. Anderson, 11 Mass. R. 190.
    Billings, for the plaintiff,
    cited St. 1805, c. 90, § 5 ; Drinkwater v. Drinkwater, 4 Mass. R. 357 ; Mansfield v. Patterson, 15 Mass. R. 491.
   Parker C. J.

delivered the opinion of the Court. It is made a question, whether upon the facts set forth in the replication, admitting them to be rightly pleaded, the plaintiff is entitled to his action. The substance of the replication is, that certain real estate of the intestate had been fraudulently conveyed by him in his lifetime, and that being liable by law to his debts, it ought to have been inventoried ; and the breach of the bond alleged in the replication, is the not inventorying this real estate. It is doubtful, at least, whether the replication is sufficiently particular. It does not directly charge the defendant with being a party to the fraud, nor with knowledge in any other way, though it is strongly implied in the replication.

We do not however determine upon the sufficiency of the replication in this point of view; but upon other and more general grounds, we think no right to this action is shown. To maintain a suit on a probate bond, in order to obtain execution by any particular person interested in the estate, he must be a creditor with his debt ascertained, or an heir with his decree of distribution, and in either of these cases there must be a demand on the administrator before the suit is commenced. It is not shown in the replication what sum is due to the person for whose use the suit is brought, nor that he made any demand. It appears by the indorsement on the writ, that the suit is brought under the special provisions of the statute, so as to enable the real plaintiff to have execution for the amount recovered, and if this suit should prevail, he might take the whole of the property for his debt, although there are many other creditors equally interested in the fund with himself. There is no case in which this will be allowed, except when a creditor, who has neglected to filé his claim, has discovered estate which has not been inventoried, and then the action cannot be upon the bond, but it is against the administrator for the debt, and the property discovered may be seized on execution.

In the case supposed by this replication, it the administrator, upon notice, does not obtain license to sell the estate, or otherwise account for it, the judge of probate, at the instance of the creditors, will sue the bond, not for any particular creditor, but for the whole, and the proceeds of the suit will be distributed among all. Or perhaps any creditor, who zias not filed his claim, may sue the administrator and levy upon the land ; in which case he may be answerable on his bond for waste or unfaithful administration ; and thus all the creditors will obtain their portion of the funds. No creditor can sue the bond, except according to the provisions of the statute, without license or permission of the judge of probate. Robbins, Judge &c., v. Hayward, 16 Mass. R. 524.

Replication adjudged bad. 
      
       See The People v. M'Donald, 1 Cowen, 189. The administrator is bound to inventory land which to his knowledge has been fraudulently conveyed by the intestate. Minor v. Mead, 3 Connect. R. 289.
      But if the administrator has no knowledge that the conveyance was fraudulent, he cannot be made liable for not inventorying the property. Booth v. Patrick, 8 Connect. R. 106. See Potter v. Titcomb, 1 Fairfield, 53; Cringan v. Nicholson, 1 Hen & Munf. 428.
     
      
       See Paine v. Moffit, 11 Pick. 500; Coffin v. Jones, 5 Pick. 61; Dawes v. Head, ante, 128; Dawes v. Swett, 14 Mass. R. 105; Paine v. Gill, 13 Mass. R. 365; Prescott v. Parker, 14 Mass. R. 429; Judge of Probate v. Briggs, 5 N. Hamp R. 66
     