
    Richmond.
    Clarke v. Wells’ adm’r.
    
    1850. January Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. The sale by an adm’r of bis intestate’s effects, though upon a credit, must be treated at law as a conversion thereof.
    
      2. There is an exception to this rule in equity, when upon a settlement between proper parties, of the administration of the adm’r, it appears, that the collection of such sale bonds by his personal representative, is unnecessary for the reimbursement or indemnity of bis decedent’s estate, and may therefore be confided as unadministered assets to the adm’r de bonis non.
    
    3. W, adm’r of C, sells assets on a credit, and dies indebted to his intestate’s estate. A purchaser at the sale qualifies as adm’r de bonis non of C. Held : The proceeds of sale not being necessary for the reimbursement or indemnity of W’s estate, his adm’r shall be enjoined from proceeding to collect the debt from the adm’r de bonis non of C ; hut he shall hold it as unadministered assets of his intestate.
    
      John Clarke of the county of Orange, died in 1831, and John C. Wells qualified as his administrator. At the sale of the personal estate of John Clarke deceased, his daughter Lucy Clarke purchased to a considerable amount, for which she executed her bond to the administrator. Afterwards John C. Wells died, and Fontaine Wells qualified as his administrator, and Lucy Clarke qualified as administratrix de bonis non of John Clarke.
    
    
      
      Fontaine Wells instituted an action against Lucy Clarke upon her bond, and in 1838 recovered a judgment against her for 504 dollars 10 cents, with interest thereon from the 18th November 1837 till paid. She ^R applied to the Judge of the Circuit court of Orange county' for an injunction to the judgment, which was granted. In her bill she stated the foregoing facts, and alleged that in the lifetime of her father, she had lent him money, and that two executions had issued against his property, which were levied, but the property was not sold when he died. That after his death and before the qualification of the administrator, she, to save the property from being sold by the sheriff, had paid the executions, and had also paid the taxes due at his death on his land. That the property levied on, had been afterwards sold by the administrator. That no collections were necessary to pay off any debt due from John Clarke's estate to John C. Wells'; as said Wells was considerably indebted to that estate. That her bond was due to her father’s estate, of which she was then the administratrix : And that assets to a very small amount had come to her hands, which were not sufficient to pay her the amount she had paid.
    
      Fontaine Wells, as administrator of John C. Wells, and the distributees of John Clarke, were made parties defendants; and the bill prayed for a settlement of the account of the administration of John C. Wells, and of her own administration, upon the estate of John Clarke, for satisfaction of the amount due to her, for a distribution of the estate, for an injunction to the judgment, and for general relief.
    
      Fontaine Wells answered the bill. He said that he knew nothing of the offsets which the plaintiff set up; but if she made such loans as she stated to John Clarke, she was then indebted to him by bond, to which some of the credits she claimed had been applied ; and there was a large balance still due thereon. That in enforcing the payment of the judgment, he was only endeavouring to discharge his duty, and had no intention to apply the proceeds thereof to the payment of any debt, either real or pretended, due from the estate of John Clarke deceased, to that of John C. Wells; but to have it applied in a due course of administration.
    In December 1841, the Court directed an account of the administration of John C. Wells on the estate of John Clarke, and of what was due to the plaintiff for advances made by her for the benefit of the estate of John Clarke. And if the commissioner ascertained that any thing was due from John C. Wells to the estate of John Clarke, he was directed then to take an account of Fontaine Wells’ administration on the estate of John C. Wells. In pursuance of this decree, the commissioner made a report, from which it appeared, that there was due to Clarke’s estate from John C. Wells, on the 31st of December 1842, 435 dollars 51 cents, of which 417 dollars 79 cents was principal. The payments made by the plaintiff for the benefit of Clarke’s estate, with interest thereon to the 21st of July 1843, appeared to be 667 dollars 76 cents, which, when applied to the judgment, left a balance thereof of 13 dollars 92 cents.
    The defendant, Fontaine Wells, excepted to the report of the commissioner in relation to the payments made by the plaintiff. The third exception was to an item of 51 dollars, which he insisted was credited on the bond of the plaintiff, given to John Clarke in his lifetime. The fifth exception was to an item of 209 dollars 54 cents. This was a payment to Edmund Clarke, and it was objected to on the ground that Edmund Clarke had no authority to receive it, and because such payment was not embraced in the pleadings. The first payment was proved; and the only question was, whether it was not the same credited under a different date. The second was also proved; and it appeared that Edmund Clarke held a judgment against John C. Wells, as administrator of John Clarke, and the payment was made in part discharge of that judgment.
    The Court below sustained these two exceptions, and the commissioner was directed to reform his report accordingly. This was done; and the commissioner reported that there was due upon the judgment enjoined, after crediting thereon the payments made by the plaintiff, the sum of 366 dollars 54 cents, of which 318 dollars 70 cents was principal.
    The cause came on to be heard finally in October 1844, when the Court approved and confirmed the last report of the commissioner, dissolved the injunction as to the sum of 366 dollars 54 cents, with interest on 318 dollars 70 cents, part thereof, from the 31st of July 1844, and perpetuated it as to the residue of the judgment : with costs to the plaintiff. From this decree the plaintiff applied to this Court for an appeal, which was allowed.
    
      Patton, for the appellant.
    
      Robinson, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

It appears to the Court, that the judgment in the proceedings mentioned, recovered against the appellant by the appellee Fontaine Wells, administrator of John C. Wells, who was administrator of John Clarke, was founded upon the obligation of the appellant, for the amount of her purchases at the sale of the goods and effects of the said John Clarke, made by his administrator, the said John C. Wells, and that whatever remained due upon said obligation at the time of the appellant’s qualification as administratrix de bonis non of the said John Clarke, became assets in her hands, to be applied in a due course of administration, unless the same is to be regarded as having been converted by the said John C. Wells in his lifetime.

it does not appear that at the time of the death of the said John C. Wells, he was in advance to his intestate’s estate on account of his administration thereof: on the contrary, it appears that there was a large amount of assets in his hands, which fell, after his death, into the hands of his administrator Fontaine Wells, who, by reason thereof, owes a considerable balance to the estate of the said John Clarke. It is therefore unnecessary for the reimbursement or indemnity of the said John C. Wells’ estate, that his administrator Fontaine Wells should call for payment from the appellant, of her aforesaid obligation.

The sale by an executor or administrator, of his decedent’s goods and effects, though upon a credit, must be treated at law as a conversion thereof; inasmuch as the proceeds of such sale may be necessary for the payment of outstanding debts, or to reimburse the executor or administrator when in advance to the estate, or to indemnify him for personal liabilities which he may have incurred for the benefit thereof: and his condition in reference to the estate in these respects, cannot be ascertained without a final settlement of his administration, which would be difficult and inappropriate in an action brought by an administrator de bonis non against a purchaser at a sale so made by the executor or administrator. But this rule of law is subject to exceptions in a Court of equity, and is not applicable in that forum when, upon a settlement between proper parties, of the administration of the executor or administrator, it appears that the collection of such sale bonds by his personal representative, is unnecessary for the reimbursement or indemnity of his decedent’s estate, and may, therefore, be confided as unadministerec| assets to the administrator de bonis non.

In the present case there can be no propriety in permitting Fontaine Wells, who does not represent the estate of John Clarke, to coerce payment by proceedings at law from the appellant, who is administratrix de bonis non of said Clarke’s estate, of that portion thereof which must be considered as having come to her hands; the more especially as there is a considerable balance now due from him to that estate. And the appellant is properly before a Court of equity, for the purpose of establishing the credits to which she is entitled, and of having distribution amongst herself and the other distributees of said Clarke, of whatever balance of his estate may remain in the hands of Fontaine Wells as administrator of John C. Wells, and in her own, or which may be due from the estate of the said John C. Wells.

The Court is therefore of opinion, that the Circuit court ought not to have dissolved in any part the injunction which had been granted to the appellant, and ought to have proceeded, after the cause should be matured for hearing, as to the defendants, who are distributees of the said John Clarke deceased, to make distribution of his remaining estate amongst those entitled thereto, after correcting any errors in the settlement of accounts made by its commissioner, which may be shewn by such of the parties as were not then before the Court.

The Court is further of opinion, that upon the pleadings and proofs now in the cause, the Circuit court erred in disallowing the credit to the appellant of 51 dollars, which is the subject of the appellee’s third exception to commissioner Chapman's first report, and in disallowing the credit to her of 209 dollars 54 cents, which is the subject of the appellee’s fifth exception to said report.

The Court is therefore of opinion, that the said decree of the Circuit Superior court is erroneous: And it is ordered and decreed, that the same be reversed and annulled, with costs to appellant: And it is further ordered and decreed, that the injunction which had been granted to the appellant, be reinstated in full: And the cause is remanded to the said Circuit Superior court, to be proceeded in according to the principles of the foregoing opinion and decree.

Allen, J.

I am of opinion the Court erred in sustaining the third and fifth exceptions taken by the defendant Wells to the commissioner’s report, and in not proceeding to require settlements of the administration accounts on the part of all those connected with the administration of the estate of John Clarke deceased, and for the distribution thereof. I think, therefore, the decree should be reversed, the injunction be reinstated, and the cause remanded for further proceedings, in order to a final settlement of the administration accounts, and for a distribution of said estate.  