
    *David Jones and Daniel Bushman, Administrators with the will annexed of Ann Donley, v. Thomas L. Shields, Guardian of Nancy A. Donley and others.
    An action of assumpsit -will not lie at the suit of an administrator appointed under the laws of this state, to recover moneys, the proceeds of lands of the intestate lying in Pennsylvania, and sold hy the guardian as the property of the wards, under authority of the orphans’ court of that state.
    The record of a judgment against the administrator, and the return of nulla hona hy the sheriff to an execution issued thereon, is not sufficient evidence, in an action against the heir, to subject his real estate to the payment of the ancestor’s debts, to show the want of assets.
    Where land is bequeathed hy a husband to his wife, to use during life, with power to devise the same on her death to whom she pleases, and the wife devises the same, her devisee takes the estate disincumbered hy her debts.
    This is an action of assumpsit, reserved in the county of Clermont.
    The first and second counts in the declaration aver, in substance, a recovery, in the common pleas of Clermont county, of a judgment by Daniel Bushman against plaintiffs, as administrators, for $728, the issue of an execution thereon, and a return by the sheriff ,of no goods or chattels, lands or tenements, etc., and that there were no assets in the hands of plaintiffs at the time. That, by her last will, testatrix devised certain lands lying in Pennsylvania to her son, James Don-ley, since deceased, and that said lands descended to defendant’s wards,; that, by virtue'of proceedings in, and authority granted by, the proper courts of Pennsylvania, defendant, .as guardian of said minors, has made sale of said lands, and has the proceeds now in his hands, amounting to .$5,000,. .That he had notice of the judgments, etc.; and, in consideration, etc., assumed and promised, etc.
    The declaration contains also the common counts.
    A plea of non assumpsit was interposed, and the case submitted to the court, and the testimony for the plaintiff being ^closed, the defendant moved the court to overrule the same, and direct a nonsuit; which motion was reserved for a decision by the court in bank.
    
      The testimony offered by the plaintiff is as follows :
    1. The record of certain proceedings in the orphans’ court of Washington county, Pennsylvania, relative to the appointment, qualification, and proceedings,of Thomas L. Shields, as guardian of Nancy Ann Donley, Martha E. Donley, and John B. Donley, had before said court.
    2. The record of a deed from the recorder’s office in Washington county, Pennsylvania, from Thomas L. Shields, as guardian of said minors, to John Miller, for certain real estate situated in said county of Washington.
    3. Letters of administration, with the will annexed, to David Jones and Daniel Bushman, on the estate of Ann Donley, deceased, late of Clermont county, Ohio.
    4. An exemplification of the record of the will, and probate there, of John Donley, deceased, from the register’s office at Washington county, Pennsylvania.
    5. The record of the office of the clerk of the court of common pleas of Clermont county, showing a judgment recorded in said court by David Bushman against David Jones and Daniel Bushman, as administrators of Ann Donley, deceased.
    6. The deposition of Martha Clarke.
    7. The counsel for the plaintiffs then offered evidence tending' to prove that Thomas L. Shields, guardian as aforesaid, had money in his hands belonging to his wards, the proceeds of lands sold by him as guardian as aforesaid, situated in said county of Washington, and State of Pennsylvania; which said evidence was as follows, to wit: Joseph Wyatt, a witness for plaintiffs, testified that he had heard said Shields say, speaking in reference to said land in Washington county, that he had sold it, as guardian, for between $1,100 and $1,200; that he had heard said Shields say ho had paid out $300 or $400 to Hancock for said minors ; that said ^Shields had also paid to him (witness) who was the administrator of James Donley, deceased, by order of the court, thirty dollars out of said fund.
    John Joliffe, for plaintiffs :
    That a bill in chancery would be entertained in a pase like this, is settled by the case of Pedan v. Adm’r of Robb, 8 Ohio, 227. And, as the action of assumpsit is an equitable action, aiming at abstract justice, it will also lie. Claflin v. Godfrey, 21 Pick. 6.
    To sustain the action, privity of contract, in fact, ip not needed.;' 
      Privity in law is sufficient. Harris v. Clark et al., 10 Ohio, 7; 5 Watts, 134.
    See also Allen v. McKein, 1 Sumn. 317; Arnold v. Lyman, 17 Mass. 400 ; Garland v. Salem Bank, 9 Mass. 408; Denny v. Lincoln, 4 Mass. 388; Armstrong v. Garrow, 6 Cow. 365.
    James L. Shields, in person:
    By the will of John Donley, the husband of Ann Donley, she only acquired the right to receive the rent and profits of the land devised from the executors, coupled with tho power of disposing of tho same by her will. Lessee of Boyd et al. v. Talbert, 12 Ohio, 212; Jackson v. Bull, 10 Johns. 148; Jackson v. Harris, 8 Johns. 142. And her appointee, James Donley, takes the land unincumbered with any debt of hers. 4 Kent’s Com. 320-340; Whitman v. Norton, 6 Binn. 395; Tucker v. Hasanclever, 3 Yeates, 294; S. C., in Court of Errors, 2 Binn. 252.
    By the law of Pennsylvania, as well as upon general principle, tho action, if maintained at all, can only be brought in Pennsylvania, where the land lies. 362] Austin v. Gage, 9 Mass. 395; Pav. Logan’s Adm’r, 4 Bibb, 402. And, ^though the money has boon brought into this state, it does not thereby become assets.' Peck v. Mead, 2 Wend. 470.
    But, if this fund were chargeable with the debts of Ann Donley, it must be reached through a court of chancery. 2 Fonbl., 2d ed. 378, in note; 1 Brown’s Ch. 6; Boston’v. Lindergreen, 2 Brown’s. Ch. 94; Shepard v. Lutwidge, 8 Ves. Jr. 26; Toller’s Law of Ex’rs, 414; Rutledge v. Rutledge’s Creditors, 1 McCord’s Ch. 469.
   Birchard, J.

The proof offered by the plaintiff shows that all tho right which Ann Donley, the testatrix, had in the lands, the proceeds of which are sought to be recovered by this suit, was conferred upon her by the last will and testament of heríate husband, John Donley. To that, then, we must look. The clauses of the will relating to this case read thus : “ I give and bequeath unto my beloved wife, Ann Donley, all my real and personal property except such as shall hereafter be described” (and, after describing certain property which is specifically.disposed of to other legatees, the will proceeds), “ All the remainder I allow my wife to have during her life, for her comfort and accommodation; and, at her death, I bequeath unto William Donley, son of Matthew Donley, 'deceased, $150; and, if my beloved wife should decease before ho comes to the ago of twenty-one years, I allow my executors to put the money at interest until he comes of age; and I allow my executors to rent the place and give all the profits of it to her as she needs it; and, at her death, she is to bequeath it to whom she pleases.” To sustain their action, the plaintiffs assume that this will vested in Ann Donley the entire estate in the land, or at least such an interest that it is chargeable with her debts. The assumption is not warranted. The intention of the testator was to give her the use of the land during her life, with the power to dispose of it by will, at her death, to whom she might see proper. She did not take such an estate as would be liable for her debts, and the wards of the defendant *who acquired title by descent as heirs of their father, the devisee or appointees, by the will of Ann Donley, inherited that title free of any claim against it on her account. The position is too plain to need illustration or the support of the authorities. It shows that there is no evidence sufficient to entitle the plaintiff to recover.

Were it admitted, however, that the land in Pennsylvania was held by the heirs of John Donley, subject to the payment of the debts of Ann Donley, the proof would be insufficient to entitle plaintiff to a judgment. It is not competent evidence of the want of assets; and the averment that all her other property had been disposed of, must be sustained by evidence, to entitle the administrators to sell that which descended to the heirs. The proof to sustain this averment is the judgment and execution, with the sheriff’s return indorsed thereon. These were matters with which the heirs had nothing to do, and by which they should not be bound They are entitled to be heard in opposition to that judgment, and have still a right to controvert it, and to prove that it is not a just claim against the estate of their ancestor.

Still clearer is their right to contest the truth of the sheriff’s return, by showing that other assets remain in the hands of the' plaintiffs. It would never do to suffer the real estate of minor heirs to be taken from them upon proof that the administrator of the estate of their ancestor had suffered a return to an execution, of nulla bona, to be made. Supposing the execution to have been1 issued on a bona fide judgment, the return would follow as a mat-ter of course. The administrators could not suffer the assets to' bo levied on and sold; for that would defeat the statutes providing for the settlement of estates. The return, therefore, was no evidenee of want of assets, and is not inconsistent with the supposition that these plaintiffs had an abundance of cash assets then in their hands.

The defendants were not bound to prove a negative, i. e., a want of assets in tho hands of the administrators. Before a final or partial settlement, or a report to the court of the amount *of assets and liabilities, made by these plaintiffs, the heirs could not well bo supposed capable of showing tho condition of the estate. The averment of a want of assets was an affirmative averment, which the administrators who managed the estate of Ann Donley, and knew how it had been disposed of, were better able to maintain than any one else, and which they ought to bo held to prove, by something better and more conclusive than the return of the sheriff.

Suppose the judgment had been rendered by collusion of plaintiffs, on a groundless claim, one that was barred by the statute of limitations, or on a contract founded on an illegal consideration— and it is clear that the heirs ought not to be concluded by it— they should not, in such a case, be compelled to suffer their land to be sold to satisfy it; and this shows tho propriety of requiring better proof. Considerations like these ought not to be overlooked.

Again, the lands of which the proceeds are sought, were situate in tho State of Pennsylvania. The guardian, under the authority conferred upon him by the laws of that state, and the orphans’ court, converted it into money. To that court, and within tho jurisdiction of that state, are he and his sureties responsible for the faithful administration of his trust. Itis'obvious that tho plaintiff could not have reached these lands, in order to subject them to the payment of the debts of tho testatrix, without tho aid of the laws and the probate courts of the state. What has been done, has changed the form of tho property; but it is still, to a great extent, substantially within that jurisdiction. In the hands of the guardian, who is responsible to the orphans’ court, and liable to be called on to account to that tribunal, we doubt seriously whether the law will raise an implied power against him, in favor of plaintiffs, upon which assumpsit can bo maintained. Were the fund needed, tho proper way to reach it, if to be reached at all through the aid of the courts of this state, would seem to be by bill in chancery, bringing into court all the deviseos, legatees, and heirs, so that a fair and just contribution of tho burden might be made amóng *them, and so that the legacies might be subjected according to the equities subsisting between tho parties.

Judgment for defendant.

Wood, C. J., was prevented from sitting in this case, by indisposition.  