
    THE ORDINARY OF THE STATE OF NEW JERSEY, APPELLANT, v. LEVI HITCHNER AND UNITED STATES FIDELITY AND GUARANTY COMPANY, RESPONDENTS.
    Submitted May 28, 1937
    Decided September 22, 1937.
    For the appellant, Harry Adler (Samuel Adler, of counsel).
    For the respondent Levi Hitchner, Russell S. Henderson.
    
    For the respondent United States Fidelity and Guaranty Company, M. Joseph Greenblatt.
    
   The opinion of the court was delivered by

Lloyd, J.

The action in this case was on an administrator’s bond given by Levi Hitehner, and the United States Fidelity and Guaranty Company as surety, for the faithful performance of the duties of Hitehner as administrator cum testamento annexo of the estate of Martha Ella Hitehner, deceased. The bond was dated October 31st, 1919. No account being filed by Hitehner, Ethel Jaggers, daughter of Levi Hitehner and of the deceased Martha Ella Hitehner, filed a petition on September 13th, 1934, in the Orphans Court of Cumberland county praying that the administrator show cause why he should not state and settle his account. The prayer of the petition was granted and the administrator finally. ordered to account. This- order was not complied with; whereupon, Ethel Jaggers on July 3d, 1935, filed a petition in the Prerogative Court for leave to prosecute said bond. Such order was granted, the action instituted, and the ease proceeded to trial before a judge and jury and resulted in a verdict in favor of the defendant.

The plaintiff appeals and urges as grounds for reversal that the court erred in refusing to direct a verdict in favor of the plaintiff, in refusing to charge certain requests, together with certain rulings upon the admission of evidence.

The defense to the action was that Mrs. Jaggers had received all that was due her from the estate, had made an agreement of adjustment between herself and her father, the only person interested in the estate, and had agreed that no account needed to be filed. There was evidence to sustain the defense and the jury found in favor of the defendant.

It is urged in this court that notwithstanding such adjustment it was incumbent on the administrator to file his account regardless of any stipulation or agreement of the parties in interest, and reliance is placed on the case of Ordinary v. Barkalow, 36 N. J. L. 15, holding that failure to settle an account is a breach of the bond given under section 5 of the supplement of 1855 to the Orphans Court act. Conceding this to be the law, it is not within the province of disinterested persons to institute an action thereon. The record shows that the present suit, while in the name of the ordinary, was instituted at the instance of Ethel Jaggers who, if the proofs be believed, as they were by the jury, had ceased to have any interest in the estate. This being true, and no default of which she was entitled to complain having occurred, the motion for direction of a verdict in favor of the plaintiff was properly denied.

The instructions which the court refused to charge in terms were:

“If you find that the defendant Levi Hitchner failed to account for any money due Ethel Jaggers of any other person or persons, no matter how small the amount may be, then it is your duty to bring in a verdict of $4,000 against both defendants which is the full penalty of the bond.

“If you find that the Orphans Court by its order directed the defendant Levi Hitchner to file and settle his account, and the said Levi Hitchner failed to file and settle his account in compliance with said order, then it is your duty to bring in a verdict against both defendants for $4,000, the full penalty of the bond.”

Roth of these requests fall for the reasons already stated and were properly denied. As to the first, Ethel Jaggers no longer being interested in the estate, was not entitled to litigate for strangers, and as to the second, the court only and not Mrs. Jaggers could call the administrator to account.

The judgment is affirmed.

For affirmance — The Chancellor, Chief Justice, Trenchard, Parker, Lloyd, Case, Bodine, Donges, Heher, Perskie, Dear, Wells, WolfsKeil, Rafferty, Cole, JJ. 15.

For reversal — Hone.  