
    
      Wm. B. Villard and Wife et al. v. Ann M. Robert et al.
    
    Two executors converted part of their testator’s goods into money, and died; an administrator de bonis non of the testator was then appointed, with whom the personal representatives of the deceased executors accounted, and from whom they took a receipt and discharge in full, &c. — the Court allowed this to be a full and sufficient bar to an account prayed by the legatees of the- testator-against the representatives of the executors, for the same matter — holding that the administrator do bonis non was fully competent to demand and compel an account from the representatives of his predecessors in office.
    
      The administrator de bonis non is entitled to all the unconverted goods of the testator, and although the proceeds of those converted go by legal right to the personal representative of the executor, to be administered by him as parcel of the executor’s estate; yet in equity, he is to answer, out of the estate, for all the trusts upon which the executor held the money, and the administrator de bonis non is entitled to demand the account and receive the money.
    
      Note. — The above embodies the decision of the Court of Errors on the only points submitted to them. On their certifying back their opinion to the Court of Appeals, that court approved of the following additional points, ruled by his Honor, Chancellor Johnston, on the circuit.
    Notice will not be implied from the recording of a deed, which was not required to be recorded, and which was recorded at such a distance of time from its execution as would have been a void registration as to any deed required to be recorded.
    It is no devastavit in executors to permit a slave of their testator to go into possession of his widow, with whom her only child lived, and who was co-legatee with her of the slave.
    Where husband and wife were in possession of slaves, liable to partition between them and an infant daughter of the wife, by a former marriage, who lived with them — there having been no overt acts or claims, signifying an intention to test the validity of a title afterwards relied on — the Court held that their possession was the possession of the infant, their co-tenant, and, regardless of the lapse of time, ordered a writ of partition to divide the slaves, in accordance with the will under which they were co-legatees.
    The Court refused to allow the counsel fee, paid by one called to account as admimstrator de bonis non, to be charged against the estate which he represented, when it was incurred by him for his own exclusive benefit, and to sustain interests adverse to the legatees who sought the account.
    This case came up on appeal from the decree of Johnston, Chancellor, at Gillisonville, February, 1846, and one of the grounds of appeal was submitted to the judgment of the Court of Errors, at Charleston, January, 1847.
    The Chancellor explains the case in the following circuit decree:
    Johnston, Ch. This is a bill, filed the 19th of January, 1844, by Wm. B. Yillard and Harriet, his wife, formerly Harriet McKenzie, and Wm. M. Bostick, the trustee of their marriage settlement, against the defendants, Ann M. Robert, executrix of Jno. H. Robert, deceased,- Ulysses M. Robert, administrator of Wm. H. Robert, deceased, (which John H. and Wm. H. Robert were the executors of Daniel W. McKenzie, the father of the plaintiff, Harriet,) and against the defendant, Isaac A. E. Chovin, the administrator de bonis non cum 
      
      testamento annexo of the said Daniel W. and formerly husband of his widow, Eliza, the mother of said plaintiff Harriet.
    The bill states that, on the 10th of August, 1815, one John Robert made an absolute deed of gift to his granddaughter, Eliza Bostick, afterwards wife of the said Daniel W. McKenzie, but then a femme sole, of a certain female slave, Nancy, of whom possession was delivered to the donee, and retained by her until her marriage.
    That the said Eliza Bostick intermarried with the said Daniel W. McKenzie the-• of February, 1821, and carried the said slave and her increase with her into his possession, which possession he retained until his death, which took place the-of-, 1826.
    That at his death he left his said wife, Eliza, and one child by her, the plaintiff, Harriet; and a will, dated the 8th of March, 1826, by which, subject to an annuity of 150 dollars to his mother, Elizabeth McKenzie, he devised and bequeathed to his said wife, Eliza, and his said daughter, Harriet, then 'an infant, all his estate, real and personal, “to be fully and peaceably enjoyed by them during the minority of his said daughter, or until she marries. In that event, the whole of his estate to be equally divided between them.”
    That John H. and Wm. H. Robert, named in the will as executors, qualified, &c. the 8th of May, 1826, and possessed themselves of the estate; sold part of it, and invested the sum of $>2,333 65 at interest, to raise the annuity for their testator’s mother, which annuity they regularly paid until their death.
    That testator’s Widow, the co-legatee and mother of the plaintiff, Harriet, intermarried with the defendant, Isaac A. E. Chovin, the-of September, 1828.
    That one of the executors, John H. Robert, (the testator of the defendant, Ann M. Robert,) died the 4th of July, 1835, and Wm. H. Robert, the other executor, (and testator of the defendant, Ulysses M. Robert,) died shortly afterwards, and in the same year; and that the said Isaac A. E. Chovin, on the 18th of December, of the same year, took out letters of administration de bonis non, with the will of the said Daniel W. McKenzie anpexed, and reduced the personalty of his estate into his possession, including the fund aforesaid, vested for raising the annuity of the testator’s mother; which fund, together with .other large sums of money, the amount unknown to the plaintiffs, the bill charges he received from the said representatives of the former executors.
    
      The bill also charges that he also obtained possession (but at what time the plaintiffs do not know) of the slave Nancy and her issue then in esse, and has them now in possession, and refuses to partition them with the plaintiff, Harriet.
    It is further stated in the bill, that the annuitant, the testator’s mother, died the-of August, 1838, having received all arrearages on her annuity up to the time of her death.
    That Eliza, the mother of the plaintiff', Harriet, and wife of defendant Chovin, died the--of March', 1843 ; the said plaintiff being still a minor and unmarried ; and the estate of her father, the said Daniel W. McKenzie, having never been partitioned.
    That the said plaintiff, Harriet, was married the 2nd or November, 1843, to her co-plaintiff, Wm. B. Yillard, and on the same day, but previous to the nuptials, executed a deed of marriage settlement, by which, and upon the trusts therein mentioned, she assigned and conveyed to her other co-plaintiff, Wm. M. Bostick, all her rights and estate, present and expectant.
    The bill seeks an account from the defendants, Ann and Ulysses Robert, of the administration of the former executors, whom they represent, respectively; and from the defendant, Chovin, an account of his administration, <fcc., and of the income and profits of the slave Nancy, and her issue : of whom partition is also sought.
    The two first-named defendants, admitting the will and death of the said Daniel W. McKenzie, and the executorship of the said John H. and William H. Robert, plead that they came to an account, separately, with Chovin, the administrator de bonis non, paid him the balances found due upon said accounts, and took his receipt and discharge in full, &c., and that as to the other matters stated in the bill they are strangers to them.
    Chovin, by his answer, admits the will and death of McKenzie, the administration of John and William Robert, and their deaths in 1835, and the administration on their estates. That he married the widow of McKenzie in September, 1828, found her in possession of Nancy, of whom he took possession, supposing her to be her absolute property, and having no notice of any claim to the contrary: That the executors, so far from interposing any claim, never inventoried said slave as belonging to the estate of their testator, and permitted his possession, from his marriage in 1828, till their deaths in 1835, without molestation or question.
    He also admits that he took out administration as successor to the executors, as stated in the bill; came to a settlement with the personal representatives touching the estate of McKenzie, and received from them the sum of $2468 45 ; which is all of the assets of that estate he ever received: out of which he paid the annuity of testator’s mother, up to her death in 1838; and by expenditures for the education and clothing of Mrs. Villard, and by a trifling appropriation of interest to his own account, the fund has been disbursed, except a balance of about $200; and that he is ready to account, &c.
    All the defendants plead and rely on the statute of limitations and lapse of time, &c.
    At the hearing, a copy was produced from the registry of mesne conveyances for Beaufort, of the deed from John Bostick, of the 10th of August, 18 L5. The deed purported to convey the slave, Nancy, to the donor’s grand-daughter, Eliza, as stated in the bill; and in the same deed was also conveyed another slave, Sam, to his grand-son, Benjamin R. Bostick : “but if it should so happen, that either my grand-son, Benjamin R. Bostick, or my grand-daughter, Eliza Bostick, should die, without leaving lawful issue, the negroes, so given in this deed, to revert to and belong to the survivor, and his or her heirs, forever.”
    It was proved that the slave, Nancy, was in possession of the donee before her marriage with McKenzie, and in the possession of McKenzie from the marriage till his death.
    She was at the sale of his estate by his executors, but was not sold by them. The executors did not include her in their inventory. At the sale they said she did not belong to the testator’s estate, but was secured to Mrs. McKenzie by deed, and if shed died without children, would go over to others.
    Chovin was at the sale, according to witness’s recollection, doing writing for the executors. Witness was not clear in this impression. The executors, after the sale, said the slave did not belong to their testator.
    Upon Chovin’s marriage, he-got possession of Nancy, and has retained it ever since. She now has several children.
    Some years ago, but the witness cannot fix the time- — rather thinks it was since 1840, Chovin got-the deed from the witness, who had it in possession.
    It appeared in evidence that this deed was recorded, as before stated, the 9th of February, 1818, by the then Register, Covise. Chovin was Register afterwards for several years. These latter facts were proved by way of fixing him with notice of the deed, and that the property must have belonged to McKenzie, and was subject to the provisions of his will
    And, by way of negativing the idea that Chovin received or held Nancy, or her issue, as the exclusive property of his wife, or adversely to the plaintiff, Harriet, a deed was given in evidence, executed, by way of marriage settlement, by himself and his said wife, the l’3th of September 1828, before their intermarriage, professing to convey certain slaves, then belonging to her, and to assign all the interest which she might acquire in her father’s estate, to trustees, upon trusts therein expressed. In this deed it is recited that, “whereas, the said Eliza A. McKenzie, at the date of sealing and delivering these presents, is entitled to and possessed of eight negro slaves, named Betty, Harriet, Anny, Mary Ann, Lizzy, John, Richard, and Henry, and will be entitled to some share, interest, and portion in the estate of her father, Richard Bostick,” &c. This enumeration does not include Nancy or her issue, nor does the deed refer to any interest she had or might have in her late husband’s estate. So much for Nancy and her issue.
    With regard to the account rendered by the representatives of the deceased executors to Chovin, ad/ministrator de bonis non, &c. it appeared at the hearing, that on the 2d of May, 1836, Ulysses, the administrator of Wm. H. Robert, came to a settlement with Chovin, as administrator of McKenzie, and paid him the sum of $2,022 18, the balance found to have been in the hands of said Wm. H. as executor of McKenzie, and took a receipt from him for that sum, “ in full for all the assets of the estate of Daniel W. McKenzie, which came to the hands of the said Wm. H. Robert, as executor of the said Daniel W. McKenzie, (or which have come to the hands of the said U. M. Robert, as administrator aforesaid, since the death of the said Wm. H. Robert,) as more fully appears from the books and returns of the said Wm. H. Robert.” And that the administration accounts of the said John H. Robert were referred by his executrix, Ann, and the administrator de bonis non, Chovin, to the arbitrament of Messrs. DeTreville and Colcock, and the umpirage of Mr. DeYaux, who awarded the sum of $175 87, with interest from July 1, 1836, to be paid to the latter by the former, as the balance with which her testator was chargeable, and that on the 18th of December, 1836, she paid him the sum of $446 25, and took his general release, dated the same day. There is a report of the commissioner in the case, and exceptions, to which I shall attend hereafter.
    I shall take up, in the first place, the question, whether the plaintiff, Wm. M. Bostick, in virtue of the marriage settlement between Yillard and wife, vesting her property in him as trustee, is entitled to partition of the slave Nancy, ■and her increase, now in the possession of the defendant, Chovin, as part of the estate of McKenzie.
    There is a preliminary question here, which was argued at .the bar, and it is, whether, if the defendant, Chovin, has acquired such a right in this property as to preclude the plaintiff, Harriet, from any interest in it, whether, in that case, the executors would be liable for its value, as for‘a devastavit or neglect of duty. What I have to say on that is, that according to the view I take, Chovin has not acquired an exclusive right, and therefore the question stated becomes unnecessary ; in the next place, that if it were otherwise, this question could not arise under this bill, which, makes no such charge against the executors; and thirdly, that I do not think any devastavit was committed by them.
    The grounds upon which , the executors of McKenzie omitted to inventory Nancy, (for it appears she had no issue at that time, nor until she came into the possession of Chovin on his marriage) are apparent. . From a misconstruction of the deed of John Robert, they supposed that the limitation of the property over to Benj. R. Bostick, in the event of Mrs. McKenzie’s dying without issue, prevented their testator from acquiring any interest in it, whereas, (supposing the limitation good) the slave and her issue vested, in the donee, and of course in her husband, subject only to be divested on the happening of the contingency, which in fact never happened.
    But it- was no devastavit in them to permit the negro in question to go into the possession of the widow of the testator, with whom her child and co-legatee lived. The will, which they were to execute, expressly declared that the legatees were entitled to the full and peaceable enjoyment of their common property, until the daughter should come of age or marry. If the executors had claimed the slave Nancy for the estate, and detained her from the legatees, they might, have been compelled to deliver her into their possession. Can it make any material difference, that the effect of that, assent which they might have been compelled to give, was. produced by their non-interference?
    The slave Nancy was already in the hands of one of the-legatees ; the legatees were entitled to the enjoyment, and the-period of division was yet far off. The executors did not need the property to pay debts, nor to raise the annuity fund: and wilat excuse could they have made for detaining this property from the hands of the legatees ? One of these was an adult,, the other an infant, living with her, and if they had delivered 
      the property (which was not yet to be divided, but to be enjoyed,) they must have delivered it into the hands of the adult.
    To a creditor the executors might have been responsible for allowing the possession to the Jegatee, Mrs. McKenzie, in case of insufficiency of other assets to pay his debts ; but to a legatee entitled to a division, it could be no ground of complaint, that property was delivered to another, his companion in interest in that property.
    The only loss which could have accrued, would be, if that other took and held possession in reference to a claim opposed to, or exclusive of, his co-legatee, so as to oust him. But in this case, I have no evidence of that sort. We have no evidence that Mrs. McKenzie ever claimed this property in any other character than its real character — parcel of her husband’s estate. She had possession and she retained it, or rather was not disturbed, in it; but there is no witness who says that she retained it because it was her’s, or because the executors thought so, or that she knew what their opinion was; or if she did, that she concurred in it; or designed to appropriate the slave to herself. On her part there was possession, which was continued; but as to any change in the character of the possession, which is the material point — the evidence speaks not a word. ■
    And so of Chovin, when he married Mrs. McKenzie. It is easy for him to say now that he took the slave to be the property of his wife, and always so claimed it. ■ But where is the evidence that he ever did so claim it? I cannot find it. If he means that he so regarded it m his own mind, no one can dispute or disprove that, any more than he can prove it. But there was no overt act amounting to an ouster, or calculated to put the infant on her guard, or on the assertion of her rights, even if her infancy had not been a sufficient protection to her. She had this protection, however. Born of parents who were not married till 1821, she could not be of age until 1842, and her bill was filed within two years afterwards.
    It will be observed that I do not impute notice to Chovin from the registration of the deed. There is not sufficient evidence of actual notice, though his calling upon B. B. Bostick for the deed, is rather calculated to raise a suspicion that he knew something of its contents before. Notice will not be implied from the recording of a deed which was not required to be recorded, and which was recorded at such a distance of time from its execution, as would have been a void registration as to any deed required to be recorded. It would be rather hard to imply that because Chovin subsequently became Register, he must, of course, be acquainted with all the papers, lawfully or unlawfully, in his office, when he came into it.
    Neither do I attach so much importance to the marriage settlement which he and his wife executed, as the counsel op.posed to him did at the hearing. It does not purport to settle all the negroes Mrs. McKenzie owned, but only enumerates those intended to be settled, and the omission of Nancy-is, therefore, no conclusive proof that she was omitted merely because Mrs. McKenzie did not claim her as her own.
    I found my decision upon this alone; that Chovin and his wife were in possession of slaves liable to partition ; and that their possession was the possession of their co-tenant, unless they, by overt acts or claims, signified an intention that it should not be so regarded, and thereby gave occasion to test the validity of the adverse claim upon which they relied,- And there is no such evidence in the case.
    The next question is, whether the account stated between the administrator de bonis non and the representatives of the first executors, and particularly the release to the executors -of John H. Robert, are a bar to the account now claimed of them by the plaintiffs.
    The rule is undoubted, that where the account has been stated between proper parties, it isa bar to a general claim for .an account afterwards. If there be errors, or any other matters which are a ground for impeaching the account which has been had, the bill must be for opening the account, in order that it may be corrected; and the errors must be set out in the bill, and established, before the accounting party shall be put to account a second time. This is not done here, and, therefore, the only question in this case is, whether Chovin, the administrator de bonis non, was competent to make the settlements and execute the release which he did. If he had authority to demand the account, and to receive the money, he had authority to give the evidences of acquittance which he executed: and, therefore, the question is narrowed down to this: had he authority to demand and compel an account from the representatives of his predecessors in office? •
    1 put the question thus, not doubting, at the same time, .that whatever authority he may have had, if he exercised it fraudulently; as, for example, if there was collusion between himself and those with whom he settled, the act would not be binding on his cestui que trust, although binding, on himself. But in that case, the fraud, and not the want of authority, being the ground on which the Court must interefre, the fraud must be stated in the bill. There is, however, no surmise of fraud in this bill; nor was there any at the hearing.
    I take the settlement, therefore,, for a fair one, and depending altogether on the legal ability of Chovin to make it:— and regard it with this inference in view, that if he was competent to make it, it binds the legatees and' all other parties interested in the estate.
    Was he competent? Undoubtedly an administrator de bonis non is the proper person to receive all the assets of the testator remaining unchanged in the hands of the first executor at the time of his death: and this is not disputed.— But in this case, that which was received by Chovin was not assets in specie, but assets which had been converted into money.
    The question then is, was Chovin a proper party to receive this money? Could he have sued for it?
    I think he could have maintained a suit for it, and, therefore, it was properly paid to him. I am of the opinion that an administrator de bonis non may sue for and recover not only specific assets belonging to his testator, but money, the substitute of them, for the purpose of paying his testator’s creditors, or his legatees, or accomplishing any other purpose indicated in his will remaining to be accomplished; or in case the deceased be an intestate, he is a proper officer to receive the property or funds of his estate, to be applied as the law directs.
    We have a case, decided with great ability, which looks the other way. I refer to Smith v. Car ere, (1 Rich. Eq. ] 23.) But the point now under discussion was not necessarily involved or decided in that case.
    That was a bill by the distributees of an estate, against the administrator of the administrator, who had converted the whole of the personalty into money, and died, with a balance in his hands, having paid all the debts, but having paid nothing to the distributees. The bill expressly averred that there were no creditors unsatisfied. The defendant demurred, upon the ground that an administrator de bonis non was a necessary party, and should be made a party: and the Court overruled the demurrer. The decision was right.— It goes the length that, in such a case, the distributees may sue ; and that if they do sue, they shall not be delayed for want of an administrator de bonis non. And why had they not a right to sue as distributees, and receive the money, when it was admitted by the demurrer, that there were no debts, and, of course, no persons entitled to the fund sued for but distributees? Nothing remained but distribution, and why not make it ? And why require the senseless ceremony of introducing an administrator de bonis non, when all he could do m the case admitted would be, to stand by and see the distributees receive their money? (9 Mod. 299, case 112.)
    But that case does not say — the case, I mean, does not require it to be said — that if an administrator de bonis non had filed that bill, he could not have sustained it. And if such an administrator had sued and obtained a decree, would it do to say that it would have been no protection to the party against whom it was pronounced ? or that he would have been liable to another suit and another decree, and to pay the money a second time to the distributees? And if called on by such an administrator, who might compel him by a decree to pay to him, would it not be as little consonant to justice, to declare that his accounting, under such circumstances (where he could not refuse to account) — should not be an equal protection ?
    It is not, therefore, the point necessarily decided in Smith v. Carere irom. which I differ, but the opinion expressed by the Court upon points not necessarily involved in the decision. And while I say this, truth compels me to avow that at the time .that opinion was delivered, although prevented by severe illness from being in Court, if I had been there I should have concurred in it. For I was of the same mind. But subsequent reflection, arising from incidents that have since struck me. have satisfied me that I should have erred, in so doing.
    ’ The argument for the doctrine, that an administrator de bonis non cannot recover, from the representative of the first executor, funds in his hands arising from assets of the testator, goes very far back, and is made to rest on a doctrine which is now little better than a legal fiction. “ Before the statute of distributions, the executor was entitled to the whole personal estate, subject to the payment of debts and legacies. When, therefore, he sold or converted any portion of it, this was understood to be a seizing or taking possession in his individual right; just as an executor may now assent to his own legacy. The goods were said to be administered, and no longer in his possession as executor. If he failed to retain enough to meet the claims of creditors and legatees, he was liable for a devastavit, as of his own personal debt.” This being taken as a postulate, it is then said: “It is certain the rule of law has not changed since the statute.”
    The question is whether, before that statute, the administrator de bonis non might not have recovered the funds necessary for the payment of debts and legacies. Although the first executor, in virtue of his conversion of the assets, might. be liable directly to the creditors and legatees as for a devastavit, is it certain that the conversion operated as an administration, so far as to deprive the administrator de bonis non of the right to claim the fund for administration in the payment of debts and legacies? If not paid to or recovered by the creditors or legatees, might he not receive the fund and disburse it? And if he could not before the statute, still is not the idea that the executor’s conversion may be regarded as an act of administration, by way of assenting to his own legacy, negatived by the statute, which takes the surplus from him? I have not access to many of the cases quoted ; particularly to the cases of Coleman v. McMurdo, (5 Rand. 51.) and Hagthrope v. Hook, (1 Gill and Johns. 270.) But- in such as are accessible to me, I do not find enough to satisfy me that the administrator de bonis non could not recover funds of the description alluded to. Certainty no such decision has been pointed out in the English books, much less m our own.
    The whole argument seems to rest- on this, that the representative of the deceased executor is made liable to creditors and legatees, directly; and therefore, it is assumed, there is not and never was a remedy for the latter, indirectly, through the administrator de bonis non. Does this follow?
    Let us look to the statutes which instituted this direct remedy for them.
    The statute 30 Charles II, ch. 7, (1 Brev. Dig. 328, sec. 8; Pub. Laws, 84,) reciting that there is no remedy, by the common law, against the executors or administrators of executors de son tort, to recover debts due by the first testator, although his assets, interfered with and wasted by the executor de son tori, were ample to pay them; enacts that his, (the executor de son torts,) executor or administrator shall be liable and chargeable (of course for the debts) in the same manner as he himself would have been.
    The statute 4 and 5 William and Mary, c-h. 24, (Pub. Laws, appendix 14,) continuing and explaining this statute, refers to its title as “An Act to enable creditors to recover their debts from the executors or administrators of executors in their own wrong and “ forasmuch as it hath been doubted whether the said Act did extend to executors or administrators of any executors or administrators of right, who, for want .of privity in law, were not before answerable, nor could be sued for the debts due by the first testator or intestate,” extends the provisions of the former- statute to this case also.
    Now, admitting that these statutes, by an equitable construction, may give a direct remedy, not only to creditors but to legatees, what is there in them to supersede the necessity for, or duties of, an administrator de bonis non ? And, especial^, what is there in them to exclude him from acting, if, by law, he might otherwise act ? Whatever assets might have been left by the executor, or the executor de son tort, in specie, it is confessed, would be deliverable to him, and could be delivered to no one else; and why not allow him to take the whole estate into his hands, and close the administration in an orderly manner ?
    It is asked, in reference to the preamble to the statute of Charles, “If the administrator de bonis non might have had an account, and recover for the assets wasted or converted by the executor de son tort, how could it be said, in the statute, that the 'creditors of the persons whose estates had been wasted were without remedy? He, (the administrator de bonis non,) would be bound to pay their debts, and would be personally liable if he did not.”
    This is well put. But may it not be replied, that the creditors, “ for want of privity,” as the statute says, were without that direct remedy, which it was the intention of the statute to give them ? Might it not be desirable to give them the privilege of proceeding immediately, and for themselves, against those in possession of their debtor’s funds, without being delayed or subjected to the chance of disappointment, by having to depend on the fidelity or diligence of the administrator de bonis non to collect the fund, and the further delay, perhaps, of having to bring him to account -for it when collected? Is it not to be supposed that before that statute there was no power in the administrator de bonis non to demand the funds of his testator, situated as contemplated by the statute ? But supposing the preamble to mean what is contended for, the amount of it is, that in the contemplation of him who drew the statute, the law was as stated; and instances have sometimes occurred, even in England, where Parliaments have given a mistaken legal opinion.
    I admit, however, that in the construction contended for, this preamble is strong evidence of the state of the law at that time. It is not conclusive, however, and certainly it is less conclusive of the state of the law in after periods. And we have pretty clear proof, in times following, that it was otherwise than represented in the statute.
    It has been said that the preamble of the statute is confirmed by the absence of all authority to the contrary, and it is stated that one of the Judges in Coleman v. McMurdo, after reviewing the authorities, said, “ To meet this formidable array, what is there on the other side ? Not one single case ; not the dictum of a single Judge; not the assertion of an elementary writer, that the administrator de bonis non, either at law or in equity, can support an action, or a bill for an account, against the representative of a delinquent executor or administrator.”
    It is understood that in the authorities commented on in that case, there was neither case, dictum, nor assertion of any elementary writer, that an administrator de bonis non could not sue in the case stated. At least in the cases and authorities quoted in Smith vs. Carere, supposed to have been of those referred to in Coleman vs. McMurdo, according to my view of them, there are none to that effect.
    I think it was a mistake to assert that there is no authority for the ability of the administrator de bonis non to claim, in the case supposed. On the contrary, I think there is authority enough to clear up a point admitted to be doubtful.
    In the first place, the analogies are in favor of his taking the whole estate as successor to the first executor. In all other cases of succession among executors, the successor takes the whole. He who comes after another appointed durante absentia, or durante minore estate, is entitled to take the whole out of his hands.
    Thus in Brightman vs. Keighly, (Cro. Eliz. 43,) J. S. made the defendant Keighly his executor while he was under age. The Ordinary appointed A. and B. administrators durante minore estate, who obtained possession of £600 of testator’s assets. Keighly, upon coming of age, proved the will and then released A. and B. from all actions. Upon an action of debt, brought by the plaintiff against Keighly, as executor of J. S. held that he was liable, as for assets, for the precise sum in the hands of the administrators durante minore estate, whom he had released.
    
      Glass vs. Oxenham, (2 Atk. 121.) Testator, by will, appointed his daughter executrix upon her attaining age, and that another should be executor during her minority. The daughter came of age, and, although it appeared in the case that the executor durante minors estate had collected in the greater part of the personal estate, the daughter alone was made a party defendant to the suit.
    Lord Hardwick — “ This is a bill brought to charge £3,000, charged upon the whole estate, real and personal, for the benefit of testator’s widow. Therefore you must have the representative of the whole personal estate, that is, the executor durante minore estate, and for want of him the case must stand over.
    “If the daughter had received all the testator’s personal estate from the hands of the executor durante minore estate, 
      
      upon an account betioeen them, the objection for want of parties had been overruled.”
    
      Fortherly vs. Pate, (3 Atk. 603.) The question was whether an administrator durante minore estate was a competent witness after determination of his administration.
    Lord Hardwick. “ It is true, he represents the testator whilst his administration subsists, but when determined has nothing more to do. Such an administrator cannot sue, that is certain, nor can he be called to account but by the executor, and whatever he may do during his administration, is not answerable to any other person ; and if an action be brought at law against the executor, he might be introduced as a witness for the executor.”
    “After he-had possessed himself of effects, if you bring him before the Court without the executor, he may demur for that cause. But as this Court will allow you to follow assets into any hands, if you will, by proper charges, show he has not accounted to his executor, but fraudulently and by collusion detains any part, there is no doubt you may maintain such a bill against an administrator durante minore estate.”
    
    These cases shew that the successor succeeds to the whole, is entitled to the whole, and is the party to represent the whole, unless a part remain still in the hands of the predecessor.
    It is so, also, in case of two executors. If one of them dies the whole administration devolves on the survivor, and the representative of the deceased executor must fully account to him.
    But there is still other evidence.
    In the goods of Joseph Hall (1 Hag. 139) an action 'was brought by the administrator de bonis non, suing in the name of the Arch Bishop of Canterbury, against the executors of the original administrator, for the balance of the intestate’s effects ; and the ecclesiastical court, as a matter of course, and of familiar practice, upon application, ordered the administration bond to be furnished in support of the action; security being given to indemnify the Arch Bishop against costs.
    In the compilation of Judge Grimke (page 216) I find the note of a case which I have not the means of verifying, but I refer to it as proof that “ supposing the administrator of an executor has possession of the goods of the testator, he cannot be called to answer for a legacy given by the will. In that case there should be the administration de bonis non set up, and he might then call him to account in a Court of Equity.”
    But it is a matter for very deep consideration that the law has ever been understood as I state it, in South Carolina;' and however it may have been regarded elsewhere, that has been the accepted law here.
    The very point was ruled by the whole Court in Gill v. Douglas (2 Bail. Rep. -387.) That was an action brought by the escheater of Lancaster, to recover a balance due by defendant’s intestate on his administration of the estate of one Clancy, who had died intestate, but without next of kin.— Curia, per Harper, J. “ The administrator of an administrator certainly does not represent the original estate; and the assets found in his hands constitute a debt to the legal representative of the first intestate. The legal representative is an executor or administrator. The escheator stands in the situation of a distributee. Certainly a distributee cannot sue the debt- or of his intestate at law, and this Court has determined that he cannot sue, even in equity, for his estate, unless an executor or administrator be made a party.”
    Such I find upon inquiry to have been the general impression of the profession, and by them inculcated upon the community; and that the settlements of estates have been made in reference to it; and that the supposed decision (fortunately not a decision on this point) in Smith v. Carere, took them by surprise and excited general anxiety. The interests to be affected by disturbing the accepted professional opinion are incalculable ; and after all that can be said, the only good that could be effected would be to conform the law to a' fiction, for it is a fiction that the executor’s conversion is to be regarded at this day as a full act of administration.
    As to the authorities collected (1 Wm’s. Ex’ors. ch. 2, 594, 5,) referred to in argument, they prove nothing to the point. No doubt all the assets of the batch remaining in specie at the death of the executor, being things capable of recognition, should be delivered over to the administrator de bonis non. But money remains with the executor’s representative, and so of every other thing that cannot be distinguished from the rest of his property; and so of bonds, notes and other contracts made or taken by him; these are inforcibie, according to the practice of courts, only in the name-.of his representative. But all this does not prove that the representative is not accountable, out of his testator’s estate, to the administrator de bonis non, any more than it proves that he is not accountable to the creditors or legatees of the first testator.
    Upon the whole, I am persuaded that it would be unwarrantable and pernicious, at this day and in this State, to hold that an administrator de bonis non has not a right to recover whatever balance may have been in the hands of the executor of his testator.
    
      'The rule is plain and uniform and intelligible to all, which makes no distinction between assets in specie, and those which are not; and the simplicity of the practice which arises from it is one of its great recommendations. The contrary rule leads to complexity, to multiplicity of suits, and delay, without subserving any valuable end, or being called for by justice.
    I shall now attend to the report of the Commissioner.
    The two first exceptions of the representatives of the deceased executors, stand upon grounds embraced in the opinion I have just delivered, and are sustained. Their 3d exception does not apply, unless their account were opened, which I have refused to do, and is, therefore, overruled.
    The exception of the plaintiffs is because the Commissioner has allowed Chovin one half his counsel fee in this case; and is sustained, because it was an expenditure for his own exclusive benefit, to sustain interests adverse to the plaintiffs, and no part of it should be charged to them or on their property in dispute.
    There is a personal account raised by Chovin against Mrs. Yillard, the items of which are appended to the report, but not apparently allowed or disallowed by the Commissioner. Though no exception is put in to that, I feel at a loss as to confirming it. It is for expenditures far exceeding the income of the funds in his hands belonging to the infant. It is probable that the profits of the negroes were the fund thus applied. I shall therefore leave this account, with the hire of the negroes, out of the decision; reserving them for further enquiry before the Commissioner, if the parties desire it.
    It is ordered, that the rest of the report be confirmed.
    That a writ of partition issue to divide the slave Nancy and her issue now in esse equally between the defendant, Chovin, and the plaintiff, Harriet Yillard; assigning her share to the plaintiff, Wm. M. Bostick, the trustee under her marriage settlement, to be held by him upon the trusts thereof.
    And that the bill as to the defendants, Ann M. and Ulysses M. Robert, be dismissed, at the costs of the plaintiff.
    And that all other costs be paid by the defendant, Chovin.
    
      Grounds of Appeal.
    
    The complainants appealed from so much of the decree of his Honor Chancellor Johnston, as dismissed their bill against the executrix and administrator of the former executors of McKenzie:
    Because, it is respectfully submitted that Chovin, the administrator de bonis non, could not require an account from the representatives of the former executors of McKenzie, a,nd the complainants’ suit was, therefore, properly instituted against them.
    Martin, for complainants.
    The defendant, J. A. E. Chovin, appealed from the decree of his Honor Chancellor Johnston in this case, and moved the Court of Appeals to reverse the samé, on the following grounds:
    1st. Because the possession by the defendant, Chovin, of the slave Nancy, from 1828 to 1835, during the lifetime of the executors of McKenzie, was adverse to them, and gives him a good title in law against the complainants.
    2d. Because the counsel fee paid by Chovin ought to be allowed as a good charge against the estate he was representing, as he was called to account as administrator de bonis non, and his fee was paid for services rendered to him in that capacity.
    3d. Because Chovin ought not to be made to pay costs.
    4th. Because the decree is, in other respects, contrary to law, equity and evidence.
    Colcock, Solicitor for Chovin.
   Johnston, Ch.

delivered the opinion of the Court.

John H. Robert and Wm. H. Robert, the executors of McKenzie, converted part of their testatrix’s goods into money, and died. Chovin became the administrator de bonis non of McKenzie, and the personal representatives of the deceased executors came to an account with him touching the said executors’ administration; paid him the balance found upon such accounting, and took his acquittance and discharge.— The legatees of McKenzie subsequently filed their bill, praying that the representatives of the executors be decreed to account to them for the same matter: to which the latter pleaded the account and settlement with Chovin and his discharge in bar; and the question has been sent from the Court of Chancery to this Court., for its judgment, whether the facts pleaded are a sufficient bar to the account prayed.

Neither the correctness nor the fairness of the settlement, above stated, is questioned by the legatees, in their bill, and the transaction is binding on them, if Chovm, the administrator de bonis non, was competent to demand the account and receive the money. The question, then, is narrowed down to the competency of Chovin to do these acts: and the opinion of this Court is, that he was fully competent. This opinion has not been formed without an attentive consideration of the numerous authorities, English and American, that have been quoted in argument; but it must be acknowledged that we have been more influenced by the uniform and recognized practice in our own State, than by any other consideration. The practice of allowing the administrator de bonis non to demand and recover the proceeds of specific assets converted by his predecessor, has prevailed extensively among us, and was never questioned, until Smith vs. Carrere. And. this, of itself, would be a sufficient reason, in the eye of this Court, for the judgment it now delivers. For the loss and disappointment to parties who have made settlements upon faith in the prevailing usage would be incalculable, if a different rule were suddenly adopted. But the practice to which I have referred is not only supported by its antiquity and prevalence in this State, but is recommended by considerations of its superior convenience. If, therefore, it were less supported than it is by principle and authority, the Court would feel very reluctant to overrule and abrogate it. But it is not without foundation in principle and authority, as I shall endeavor to shew. It is admitted on all hands that, as between the administrator de bonis non and the representative of the deceased executor, the former is entitled to all the specific assets of the testator, unconverted by the executor. They are his by legal right. On the other hand, it is admitted that the proceeds of converted assets go, by legal right, to the representative of the executor, to be administered by him as parcel of the executor’s estate, and not to the administrator de bonis non of the first testator. But the question is, 1. Whether the representative of the executor is not to answer out of his estate, for all the trusts upon which the executor held the money: and, 2. Whether the administrator de bonis nonmwy not demand that account.

We are now in Equity, and must determine these questions according to the principles and practice of that jurisdiction; and it is' conceived that whether we look to the one or the other, the answer must be in the affirmative. From the time that Equity assumed the control of executors, upon the ground that they are trustees of the assets which come to their hands, it lias never been satisfied with any rule less extensive than this: that the trustee shall not be allowed to retain any benefit to himself, in the subject matter of the trust, in derogation of the rights of those recognized by the law, for the time being, or by the court, as having an interest in the trust property. The executor’s liability or accountability has always been co-extensive with the rights of those having an interest in the trust, as those interests are recognized or ascertained by the law existing at the time. To apply this principle: as is said in Smith vs. Carrere, 1 Rich. Eq. 125, “before the Statute of Distributions the executor was entitled to the whole personal estate, subject to the payment of debts and legacies. When, therefore, he sold or converted any part of it, this was understood to be a seizing or taking possession in his individual right, ■ as an executor may now assent to his own legacy. The goods were said to be administered, and no longer in his possession as executor.” . The amount of what I have quoted is this: that before the Statute the executor, being exclusively entitled to the surplus, was not accountable for it; and in this state of the law, his conversion was an act of administration, so far as it operated an assent of the surplus to himself, as legatee. But the case is yet to be produced, to the effect that if he converted the. whole estate, he had entirely administéred it, or was not accountable for debts or legacies. But after the surplus was taken from the executor, it would bé very surprising if the court had failed to apply its own principle, and. to vindicate the rights of those to whom the surplus was given, in the same way as it had previously interposed for creditors or legatees — by compelling an account.

These observations are intended for a specific purpose. — r They may serve to exhibit the relation which an executor bears to the proceeds of goods converted by him. He holds them in trust. The legal right to the money is in him, but he is accountable, as a trustee, in respect to it. Although, in cases where the party interested in it may proceed against him at law for his devastavit, it is regarded as a debt; yet it is a debt contracted by a breach of trust: and, where Equity has jurisdiction of the case, it looks entirely to the fiduciary character of the executor, and grants its remedy by compelling a full execution of all the trusts reposed in him. His conversion or devastavit will not be regarded as an administration, but just the opposite. Strangers, to whom he may have sold the goods in his hands for a fair equivalent, and without notice, will hold them by the legal title transferred by the executor, but the executor, who must necessarily receive the price with notice of the trusts attached to the things sold by him, will be held a trustee, as to the price received. And so of the executor’s representative. He must answer, out of his testator’s estate, for his testator’s breach of trust. As is said in Prince vs. Morgan, 2 Cha. Ca. 217, cited in Smith vs. Carrere, 1 Rich. Eq. 127, “Although, by the common law, when the executor wastes, his executor shall not be liable, because it is a personal wrong, it is otherwise here?

But these observations need not be protracted. It is admitted on all hands that the representatives of the executors, Jno. H. and Wm. H. Robert, were accountable in equity for the money into which the executors converted the property of their testator. The only contest is whether they were accountable to the administrator de bonis non, or only to the legatees. I proceed, therefore, to the second inquiry. 2. Whether the administrator de bonis non might not demand the account. One of the arguments for his incompetency to do so, is derived from the phraseology of the statute 30 Ch. 2, ch. 7, recited in the decree : and that it may not incumber the decision, I shall take it up, at once, and endeavor to dispose of it. This statute says, A. D. 1669, “Whereas, the executors and administrators of such persons who have possessed themselves of considerable personal estates, of other dead persons, and converted the same to their own use, have no remedy,” (are not liable) “by the rules of the common law, as it now stands, to pay the debts of those persons whose estate hath been so converted by their testator or intestate, which hath been found very mischievous, and many creditors defeated of their just debts, although their debtors left behind them sufficient to satisfy the same, with a great over-plus. For remedy whereof, lie it enacted, that all and every, the executors and administrators of any person or persons who, as executor or executors in their own wrong, or admintrators, shall, from and after the first day of August next ensuing, waste or convert any goods, chattels, estate or assets, of any person deceased, to their own use, shall be liable and chargeable in the same manner as their testator or intestate would have been, if they had been living.” This statute has been extended to the representatives of rightful executors or administrators, by the stat. 4 and 5 W. & M. ch. 24, as stated in the decree. In reference to this statute ■ of Charles it has been objected: “ If the administrator de bonis non might have had an account, and recover for the assets wasted or converted, it could not be said that the creditors of persons whose estates had been wasted, were without remedy. He would be bound to pay their debts; and would be personally liable if he did not.” 1 Rich. Eq. 126. But the statute, as I conceive, does not assert that the creditors were without remedy. The obvious import of the passage is that the representatives of the devastating executor were not liable at common law — or (if it be a more agreeable interpretation) that the creditors of the was led estate were without remedy at commonlaw in the case stated in the statute. The statute speaks altogether of the creditor’s remedy at law, and intends to extend it to the case described by the legislature ; and this it might well do, though there existed a well recognized remedy for the creditor, by circuity, through the administrator de bonis non in equity. We shall better understand this if we attentively consider the law applicable to the case put in the statute, as it stood before the statute was passed.

In the lile of the devastating executor the creditor of his testator had a remedy at law against him. By meddling with the goods of thedebtoi, he made himself his executor, and liable to the creditor as such. The course was for the creditor to sue him as executor, and establish his demand against the deceased debtor. The judgment went for the whole debt ¿ to be satisfied de bonis testatoris, so far as the executor had come to the possession of such goods. But if the executor did not satisfy the judgment to this extent, the creditor might, by a proper proceeding, suggesting a devastavit, entitle himself to a judgment against him personally, and to be levied de bonis propriis, to the extent of his devastavit. This was the creditor’s remedy at law. But if the devastating executor died either before or after the creditor obtained his judgment de bonis testatoris, but before obtaining judgment against the executor himself, the creditor had no remedy at law (as the statute asserts) against his representative.

He could not sue this representative upon his original demand, because he did not represent the original debtor, and was therefore not the proper person to defend the action, and if judgment had already been obtained, establishing the debt, yet this representative was not liable to be sued for it. His function was to pay the debts oi his testator. But' unless judgment had been obtained against the latter, in his lifetime, he owed no debt, in the case stated, and therefore his representative was not answerable at law out of his estate. And as to the devastavit, it was regarded by the law courts as a tort which died with the wrong doer. The statute gives the ■ creditor a remedy at law in these circumstances ; in which jurisdiction he was in like circumstance (as the statute cor-, rectly asserts) without remedy, and the remedy given is very limited. Unless he has established his original demand in the lifetime of the first executor, he cannot bring suit on it against the executor’s administrator, because he does not represent the first testator, and is therefore not the proper person to contest claims upon his estate. But if he has established his demand in the time of the executor, he may (perhaps, without having proceeded to judgment against the executor himself, though this has been doubted,) go against his estate in the hands of his representative, on the ground of the executor’s devastavit.

This is the extent of the creditor’s remedy at law: a remedy still insufficient where the debt remains to be established, in which ease he needs the aid of the administrator de bonis nob to recover the funds necessary to satisfy his demand.

It is a complete misapprehension to suppose that, because the statute gives the creditor a direct remedy, under special circumstances, he was wholly without remedy through his trustee, before the statute was passed: or that when the statute expressly declares that his defect of remedy was at law, it meant that he had none in equity. Having disposed of this objection, I proceed to enquire more directly into the capacity of an administrator de bonis non to demand an account of wasted assets from the representative of the devastating executor.

In the case before us, it appears that Wm H. Robert was the survivor of the two executors, and, according to all the authorities, he might have called the representative of his deceased companion t<f account for all the funds, converted and unconverted, in his hands at his death. It would be a surprising anomaly if,the same law which would have entitled him to this account as representative of the testator, should, owing to the mere accident of his dying before the account was taken, deny to the administrator de bonis non (equally a representative of the testator) the right to demand the same account.

There is a great variety of ways in which this question may be tested: and as an examination of them all would draw out this opinion to a very inconvenient length, I shall select only one or two.

It is admitted that the administrator de bonis non is entitled to all the unconverted goods of the testator. Suppose that without knowing that any of them had been converted, he had called for an account and delivery of these goods.— They were held in trust by his predecessor ; and he, the successor, is entitled to them to fulfil the trusts now devolved on him. Would it be any answer to a trustee legally entitled to the specific trust property, to tell him that his right is defeated by the breach of trust of the former trustee, and that, owing to that breach of trust, he shall have neither the trust property nor its equivalent ?

Another view arises from the position which this Court always assigns to the representative of the testator, in all suits for the recovery and distribution of his estate. Unless under very special circumstances, as where he who is to be rendered responsible is entitled to the administration, and will not administer, and other special cases,- — equity never undertakes to get in or destribute an estate, unless a representative of the testator, alike representing him as creditor and as debtor, and standing as a trustee for all the parties interested in his property, is before the Court. And where the trust has been divided, or there has been a succession among the trustees, unless the whole fund has been placed in the hands of the existing representative before the Court, all the other trustees must be brought in with him, so that, through him, the funds may be assigned to their ultimate destination, in complete •satisfaction of the interests of all the parties, and in complete execution of all the trusts recognized in the case. Debts and legacies, and all other duties of administration, are made to centre eventually in him: and if by circuity, any other person standing in such fiduciary relation as enables the Court to take notice of him, is to be made responsible, that other is to be placed by the side of the personal representative, to enable him to meet and discharge the ultimate responsibility. Thus •equity treats the administrator as an mfity, and disposes of the estate in one suit. To this effect are some of the cases quoted in the decree. To these may be added the case of Tyler v. Bell, (2 Mylne and Craig, 89;) and Ponel v. Graham, (1 Hare Rep. 482.) These were both of them cases in which parties claiming as distributees or legatees attempted to obtain satisfaction of their interests, without the intervention of a personal representative of the decedant. But it was adjudged that without his intervention the suit could not proceed.— To the same point may be cited our own cases of Davis v. Rhame (1 McCord Ch. 195;) Gregory v. Forster, (Ib. 324;) Farley v. Farley, (Ib. 506;) Bradford v. Felder, (2 McC. Ch. 170;) and other cases. See also, Daniel’s Practice, 246; and Holland v. Prior (1 Mylne and Keene, 237.) If a personal representative is a necessary party in suits by the legatees, (as unquestionably he is, except as in Smith v. Carrere, where the existence of debts is negatived, and like special caaes,) he must be competent to receive the fund distributable to legatees, wherever there is a possibility of debts remaining to be paid.

Thus far, we have proceeded on general reasoning. Depending upon the inference from the preamble to the statute of Charles, (which I think has been answered,) and upon the words by which an administrator de bonis non is commissioned, and upon some few vague generalities, a member of the Court, in Coleman v. McMurdo (5 Rand. Rep. 58) demanded “what is there on the other side? Not,” he continues, “one single case, not the dictum of a single judge, not the assertion of an elementary writer, that the administrator de bonis non, either at law or in equity, can support an action, or file a bill for account, against the representative of a delinquent executor or administrator.”

This would have been more impressive if there had been found either case, dictum or elementary authority for the incapacity of the administrator de bonis non to sustain suits or actions in such cases.

But what shall we say to the case of Tyler vs. Bell, (2 M. & C. 89,) already referred to, for another purpose? The husband of an administratrix was considered to have possessed himself of a large sum of money due to the estate, and to have become liable to make gdod to the next of kin of the intestate, the assets received. The husband,.thus liable as administrator, died, having constituted his wife, (the administratrix,) his executrix, who received of his assets more than sufficient to answer the demands of the next of kin: Held that this was payment to the personal representative of the first decedent, and discharged the husband. And one of the illustrations with which the Lord Chancellor inforced his judgment, is this, “Suppose” (says he) “there had been two administrators, or two executors of M. M. Moscrop, and the one had died, and the bill had alleged that the representative of the deceased executor had accounted with the surviving executor for all the estate which his testator had received.— This (he adds) is a common allegation, to avoid the necessity of making the executor of a deceased executor a party.— By Mrs. Tyler’s receiving assets of Mr. Tyler, sufficient to pay what he had received of M. M. Moscrop’s estate, the whole of that estate is at home, in the hands of the administratrix of M. M. Moscrop.”

In Phelps vs. Sproule, (4 Sim. 318,) it appeared Phelps made his will, and appointed J. S. Oliver his executor.— • Without renouncing or proving the will, J. S. Oliver received assets of Phelps. J. S. Oliver then died, having appointed Betsey Oliver his executrix, and she also administered to the estate of Phelps. Betsey Oliver then died and appointed Sproule her executor, who proved her will; and Prior took out administration to Phelps, the first testator. The bill was, among other things, for an account of Phelps’s personal estate, possessed by J. S. and Betsey Oliver, and that the purchase money of the freehold estate, which Phelps had contracted for, might be paid out of it. Sir Lancelot Shadwell said, “ The right to call for an account fell upon Prior, Avho was the administrator de bonis non of Phelps.”

The same case, in a subsequent stage of it, is reported (1 Mylne & Keene, 231.) The defendant Sproule, put in a plea in bar, which in substance stated “ that he, the said Sproule, had come to a full, true and final account with Prior, in respect to the personal estate and effects of Phelps, come to the hands of J. S. Oliver, Betsey Oliver and himself, Sproule; “ and that on taking and finally balancing such account, it appeared, as the fact was, that there was justly and truly due to the estate of Phelps the sum of £471 7s. Id. and no more, which he, Sproule, duly paid to Prior, and took his discharge,” &c. The Vice Chancellor allowed the plea, and the plaintiff appealed. The Lord Chancellor reversed the decision, not on the ground, however, that the release of the administrator de bonis non was not valid, if fairly obtained, but on the special ground, that it was charged in the bill to have been obtained by fraud and collusion, which was not denied by the plea. The plea was accordingly amended; and the plaintiff declined to prosecute the suit further. It can hardly be pretended that the account in this case did not involve, at least to some extent, the proceeds of converted assets. We have few express adjudications of our own upon the subject. That of Gill vs. Douglas, quoted in the decree, is one, however, precisely to the point.

In Easterly vs. Thompson, (Rice Rep. 346,) administration had been taken out on the estate of Duncan McCol. The administrator died, and administration was taken out on his estate, and administration de bonis non granted on the estate of Duncan McCol. The suit was prosecuted by creditors of Duncan. The Court said, “ Upon the death of an administrator his administrator is not accountable to the creditors of the first intestate. Their remedy is against the administrator de bonis non — whose duty it is to have an account from the administrator of the first administrator.” The case shews a devastavit on the part of the first administrator. In Wright vs. Davis, (2 Hill Ch. 567,) an administrator, after converting the assets, died, and administration was taken out on his estate. This latter administrator held the funds of his intestate for several years, when an administrator de bonis non to the first intestate was appointed, who, in conjunction with the distributees of the first intestate, demanded an account. In taking the account, the point was made and determined, that the administrator of the administrator was not liable for interest until the administrator de bonis non was appointed; inasmuch as before his -appointment, there was no person legally authorized to receive the money and give a discharge.

I have not time to go over the eleven reported cases, cited in argument, in which the account for converted assets was demanded by the administrator de bonis non, and decreed against the representative of the first executor or administrator, without objection. This is evidence of the settled professional opinion and practice in this State. The case before us is evidence of the same opinion and practice. Every one of the persons engaged in making the settlement for the parties belonged to the bar. The recollection of every Judge on this bench is stored with instances of such settlements.' It was not considered safe for the executor’s representative to settle with any one else than an administrator de bonis non. The practice extends back beyond our own times, and within our time has been as nearly uniform as any practice can be.

When a decision is called for, which, when made, can operate only prospectively, the Court may feel greater liberty in departing from opinions previously entertained. But when the adjudication is to operate retrospectively, it becomes us to pause, especially when the interests at stake are of great extent. When we take into consideration the number of settlements which have taken place similar to those before us — involving large estates — and in the preservation of which settlements not only the trustees themselves, but their sureties, are interested, it is believed that few decisions which the Court could make would be fraught with greater mischief than one invalidating the settlement before us.

And this is not the only consideration of a prudential character. As stated in the decree, the prevalent practice is recommended by its convenience. In this State, where there is a prescribed order of administration, and creditors of the same rank are to be paid rateably, it would be hardly possible for trustees, answering for different parts of an estate, and acting separately, to so administer it that each trustee should be safe, and each creditor get his exact proportion, especially in cases of insolvent estates. The remedy is, that the whole estate be concentrated in one representative, and be distributed through him. We have not sufficient evidence that our practice is erroneous to induce us to change it, and deprive ourselves of its advantages.

It is ordered that it be certifind to the Court of Appeals in Equity, as the opinion of this Court, that the account and settlement between the representatives of the executors of McKenzie and Ghovin, the administrator de bonis non of said McKenzie, pleaded as a bar to the account sought in the bill against the said representatives, is a sufficient bar thereto.

Dunkin, Ch. Caldwell, Ch. O’Neall, J. Wardlaw, J. Frost, J. Withers, J. and Evans, J. concurred.

Richardson, J. doubted.

Decree affirmed.

On the opinion of the Court of Errors on the point submitted being certified back, the Court- of Appeals in Equity-pronounced the folio-wing decree.

Johnston, Ch.

The Court of Errors having, in answer to the question in this case, sent to them by this Court, certified their opinion to this Court, that the bar set up in the answers of Ann M. Robert and Ulysses M. Robert is sufficient to preclude the account prayed in the bill against them ; and this Court being satisfied with the decree upon all the points adjudged by the Chancellor—

It is ordered that the decree be affirmed, and the appeal dismissed.

Dunkin, Ch. and Caldwell, Ch. concurred.

Deorée affirmed.  