
    
      O. D. Allen, Ordinary, vs. Burton and Harllee, Administrators.
    The sureties to an administration bond are not liable to the heirs at law for the rent of land belonging to the estate of which their principal was the administrator, under the special circumstances.
    Before Evans, J., at Barnwell, Fall Term, 1840.
    It appeared from the evidence that one George Bruton died many years ago, and one Charles Dewitt administered on his estate. Benjamin Bruton, the defendant’s intestate, was one of Dewitt’s sureties to his administration bond. The distributees of George Bruton filed a bill against Dewitt to account. The accounts were made up by the Commissioner, who reported a large balance due by Dewitt to the distributees of George Bruton. The report was confirmed, and this action was on the bond to the Ordinary, for the amount of the decree. On examining the Commissioner’s report, it appeared that the Commissioner had charged Dewitt with the rent of the land belonging to his intestate’s estate. This item was objected. But it was finally agreed the plaintiff should take a verdict for the amount of the decree, including the land rent, subject to the opinion of the Appeal Court, on the question ^whether the security on the administration bond was liable for it.
    
      Northrop, (for Bollinger,') for tlie motion,
    said, the only question for the Court was, whether an administrator is liable for the rents of the lands of his intestate. All the authority which an administrator acquires over his intestate’s real estate is derived from the Ordinary, lie contended that it would be a confusion of the offices of administrator and guardian, if the one was permitted to interfere with the powers of the other. Cited P. L. 202 and 217.
    There was a distinction, said Mr. N., between guardians and administrators.
    If the administrator is not liable for rent, neither can his surety he, 3 McC. 417; 1 Bail. 461.
    
      Patterson, contra,
    said, at common law, an administrator had no right to interfere with the real estate of his intestate ; but, by indirect legislation, we have gone far towards conferring that power, by the Act making real estate liable for the payment of debts in the hands of the administrator. At common law, the real estate goes to the heirs at law, the personal estate to a different person. Mr. P. contended that in the Courts of Equity, administrators were called on to account for rents, and the sureties should be made liable for rents collected by their principal as administrator, or legislation should be had on the subject.
    
      Northrop, in reply,
    cited 2 Hill Law Rep. 581. Unless the estate be in debt, the administrator has nothing to do with, the real estate.
   Curia, per

Evans, J.

The question which we are called upon to decide in this case is, whether the securities of an administrator are liable

to the heirs at law, for rent of land belonging to an estate of which their principal was the administrator. The duties of an administrator, as prescribed by law, seem to relate entirely to the personal estate. It is, as his bond speaks, only of the goods and chattels, rights, and credits. Generally speaking, • we are to resort entirely to the contract which creates a liability, in order to ascertain what that liability is. *Taking this as our guide, it would seem the securities do not undertake to become responsible for the acts of their principal in relation to the real estate, and consequently are not chargeable with his default in this particular. In England (he law casts the land, on the death of the owner, immediately on the heir. The administrator never meddles with it. In this country, these two descriptions of property are more united. Estates generally in the county consist of land and negroes, and they cannot, in genera), be disunited, without materially impairing the value of both ; hence, it is almost universal, that the administrator continues the farm as lie found it, and the profits arising from both the land and the personal estate come into his hands in the proceeds of the crops; sometimes he hires out the negroes and rents the land, and then the land rent is received by him in money. How far his securities would be responsible for the money thus received, I believe has never been decided in this State. I do not propose either to discuss or to decide the question. It is not involved in this case. Here Dewitt was one of the heirs, and a tenant in common with the other. He was also the guardian of the other heir ; his use of the land is referable to these characters, rather than to his character as administrator, and it appears from the decree in equity, that it was as guardian he was ordered to account for the land rent. Under these circumstances we are of opinion the defendants are not liable for that part of the decree. The motion for a new trial is therefore granted, unless the plaintiff shall release so much of the verdict as includes the land rent which Dewitt was decreed to pay by the order of the Court of Equity.

The whole Court concurred. 
      
       See 2 Hill, Ch., 370.
     
      
       See Supra, 91, and cases in order there. An.
      
     