
    [Philadelphia,
    January, 24, 1829.]
    LEE against WRIGHT and others.
    IN ERROR. .
    An-amendment of the declaration maybe permitted on a second trial, after the reversal of a former judgment.
    Where a person dies intestate leaving a debt or debts unpaid, the children of such intestate cannot maintain a suit for any párt of his estate, or the proceeds thereof, against one having the property of such intestate,' or holding it as their trustee; but administration must be taken out, and the debts first paid. .
    If á person intermeddle with the goods of an intestate, or the proceeds thereof, and act as executor de son tort, no administration being taken out, no trust can be.raised in favour of the children as to such property, or the proceeds . thereof, or any part of,the. same, so to enable them to sue for such-property, while the creditors of the estate remain unpaid;
    ■ This case, which was an action brought by the defendants in error, .Jane Wright and others, who were stated in the -writ to be '.he infant children of John Wright, deceased, and who sued by their guardian, against William Lee, the plaintiff in error, had been before this court at a former term; when the judgment of the'District Court was reversed, and a venire facias de novo awarded. Sep 14 Serg. & Rawle, 105.
    ' When the trial again came .on in the District:Court, the plaintiffs below moved to file two additional counts to the declaration,-which originally was for money had- and received.
    The first of these counts stated, that the defendant below was possessed of sundry goods and chattels of the value of two thousand dollars, which were by him held in trust for the sole use and benefit of the plaintiffs; and that he was bound justly and truly to administer and keep the same, arid' faithfully to. apply them to the Bole use and benefit of the plaintiffs. In consideration whereof, ‘,he defendant assumed and promised to keep, administer, and apply them -.as aforesaid. Nevertheless, he did' not truly arid faith- ■ illy administer and apply them as aforesaid; but on, &c., did apply, and convert the said goods and chattels, and the proceeds thereof, to his .own use and' benefit, and hath refused to make any conpensation.
    The second count stated, that the defendant below, held a certain bonl and warrant dated, &c.,. for. two thousand dollars, the sairie being the consideration money for the purchase made by William Cháíe of the defendant, of certain goods and chattels held by the defendant, for the úse and benefit of the plaintiffs. In consideration whereof, he assumed and-promised to hold the bond for the exclusive vise of the plaintiffs, and apply the money to their use and none other. Nevertheless, the defendant caused judgment to be entered and execution to be issued, and levied on the said goods and chattels,and delivered up'to the said William Chase half of the goods for the said Chase’s own proper use, and not for the use of the plaintiffs,, and .look possession of the other half to his own use; and hath refused, to make any compensation.
    '-The defendant .objected'to'the . -filing of these additional counts'; but the court permitted them to be-filed, which was now assigned for .error. . • '
    Several other points arising upon the' record, were made in this court, and argued by P. S. Browne, for the plaintiff in error, ánd hy-J.'P. Norris, jr.,. and 'Rawle, for the defendants in error,, some of which will be found in- the former report of this cáse. Those which had not been already decided, are fully stated in the opinion of the court, which was delivered by . "•■ '.
   Ton, J.

As to any point, already.'decided in .this cause by our predecessor's, 14. Berg. <§• Rawle, i-05, T.hold myself bound by'the decision. Every exception, then .taken and overruled and now repeated, is thus answered at once: And the joinder in the suit by the three plaintiffs háving been then supported; is supported by us. The two new counts seem to have been very properly admitted by way of amendment. '-.So there remains but one; matter to be considered, In the court below-the defendant’s counsel insisted—That when a person dies intestate, leaving personal estate and leaving d deb1 or- debt's unpaid,the children of such intestate cannot maintain c suit for any part of the same-.estate,, or of the proceeds thereof, against one having-the property óf such intestate 'or .holding a.i ■ their trustee, but administration must be taken out. -and tht debts first paid.” And again, “ TKat if a person or persons intermeddle with the goods of an intestate, or the proceeds thereof, and act as executors de son tort, no administration being had, no trust cccn be raisecj in, favour of the children as to such properly, or .the proceeds thereof, or any part of the same, so as tn enable them, to sue for the. same while-the creditors .of the estah remain unpaid.”' -The court, in charging the jury; answered both these .propositions in the negative, which Í apprehend, was error This point was riot decided when the. cause was formerly in this court. The opinion given by Duncan, J., repeatedly supposes that no debts remained due. It has -been argued, that in fact no debts were' shown'on the, trial'; an argument which is, perhaps, not supported by the evidence on the record. ■. But that seems to be a matter not now for discussion. The court, in substance, directed the jury that with or without the incumbrance, of debts upon, the. estate, the action was maintainable by. the children.' The hardship of the case,' which has been' dwelt upon, seems to be very true. The two verdicts show it. " So any "other case would be a hard one of children suing in right of their father for personal property, and making out a good title in every respect except that they can .show no letters of administration. But if in one -.case a particular hardship is to be mended at the expense of general rules, it must be so in other cases, and there will be danger of á very inconvenient practice of permitting the assets and debts of an intestate to be sued for by the .next of kin, and recovered without letters of- administration. If this can be done either directly and at- once, or circuitously by setting up an executor, de son tort, under the name of a trustee, the consequence seems most certain that when any thing.unfair is intended, no- administration will be taken out in, any case. ‘ It will afford every temptation and almost impunity for embezzlement.- And suppose the very .best intentions in the next of kin'; that alters not the case,, unless we have a right to substitute their integrity in liéú of the pledges, known to the law; such as oaths, inventories, and bonds with se'curity’: shackles which it is notlikelyany man,honest,or otherwise, will'take the trouble of assuming, if. without that trouble they can be permitted, in the characters of trustees .and cestúi qúe trusts., to-hold all the legal powers of administration. Almost the only compulsion which our law makes úse of -to oblige those interested in his-intestate’s assets is the impossibility of suing without them. No case has been shown of an action sustained for such assets, unless by or against a lawful administrator. An executor de sontort, can maintain no action. 2 Com. 507. A recovery in this case caiinot be pleaded against a rightful administrator, and so much of the effects as-belonged .to the intestate may be recovered a second time, from the defendant.. Vin. Ab. 222, 223, 224, 225.

As to this being a claim of equity, I apprehend that even in equity, no such action could be suffered. .In Humphrey v. Humphrey, 3 P. Williams, 349, a bill.for an account of the estate .of a de-'ceased person, though the plaintiff,had, under the-,statute of-distribution, an unquestionable, right to the effects when recovered, yet, expressly because he-had not administered, the Lord Chancellor rejected the bill, saying that “ for aught that appears to the contrary, there may be debts due.” True, a creditor mayadminister, if nobody else-Will. But,'I apprehend, that, in nineteen cas.es out of twenty, a creditor will-very wisely prefer to lose liis debt rather than taliein hand to administer on the-estate.of a stranger. "And as to there being no danger of mischief to arise, from want of a legal administrator, because whoever intermeddles is answerable to creditors as executor de son tort, it may be observed that- such rémedy must always be, doubtful, or contentious.- -Besides, there is no inventory, no security; the wrongful executor may be insolvent, he may move out of the county, out of the commonwealth. Further, this court has decided in Nass v. Vanswearingen, 7 Serg. & Rawle, 192, that'on a judgment against such wrongful executor, the lands of the intestate cannot be taken in execution, so that without administration, the remedy of creditors must be, in almost every'respect, illusory. But our own statute law seems conclusive of the question. It expressly gives' to the next of. kin, &c., a right only to ‘u what remaineth• clear after all debts and funeral and just expenses of every sort, first allowed and deducted.”. Purd. Dig. 372. It directs refunding bonds to be given. It enables creditors and .legatees to remove even a rightful executor or'administrator irpm.his office, unless additional security is entered. Ib. 614. It enacts that even letters of administration, though granted in all the forms of law, to the proper persons, by' the proper officer, if 'without bond and sureties, shall be void-and of no effect, “ and the officer granting the same and his sureties, shall be ipso facto liable, to pay all 'damages.” Ib. 611. No.w can it be said, when the act of assembly is'so peremptory to deny all authority to-an . administrator who has neglected to give security, though appointed by the proper officer, commissioned and sworn, yet that the same authority may in another way be legally assumed by whoever may think fit to assume it, without oath, or appointment, or sureties, or any responsibility, except what every trespasser incurs? Over and above the-security of prívate rights, the.public revenue is concerned. So much'of.that as arises frqm the tax on collateral inheritances, depends chiefly upon executors and administrators. They and their sureties are made responsible by the law. Pamph. Ed. 1826,page 227. And, by the 5th section, it is enacted, that, In addition-to the oath now required bylaw to be taken by executors and administrators, they shall take an oath or affirmation that he or she will diligently and faithfully regard arid well and truly comply with the provisions of this act; which oath dr affirmation thé registers of wills for the respective counties are hereby authorized and required to administer and to pilace the same of record with the usual oath or affirmation.” The unanimous opinion of the court is, that this judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.  