
    John Douglas, Administrator de bonis non, of Robert Douglas v. Elam Day, Administrator of Ele Holmes, et als.
    1. "Without legislative aid, an administrator de bonis non, whose predecessor’s powers have ceased by death, can neither maintain an action against the administrator of the estate of the deceased administrator, nor can ho enforce a settlement by him in the probate court of the deceased administrator’s account with the estate he represents.
    2. The only remedy afforded by the statute to such administrator de bonis non, is an action on the administration bond of the deceased administrator.
    8. Under the act concerning suits on administration bonds, passed April 7, 1854 (S. & O. 619), such administrator de bonis non may maintain an action on the bond of the deceased administrator, without having the amount due to the estate he represents from the deceased administrator ascertained, by the finding or judgment of a court, before bringing the action.
    
      4. It is only when an action is brought on an administration bond by a creditor, legatee, widow, or other distributee, under sections 182 and 183 of the administration act, passed March 23,1840 (S. & C. 566), that the plaintiff is required by the statute to allege and prove his right to a sum liquidated by allowance, judgment, order, or award.
    5. In an action by an administrator de bonis non, on the bond of his predecessor, for failing to account for the property charged against him in the inventory returned by him, it is not error in the court to refuse a charge to the jury which tends to mislead them into the belief that the burden of proof does not rest upon the representatives of such predecessor to account for property proved by his inventory to have come into his hands; or that the plaintiff can recover only for what is lost or wasted by the negligence of the deceased administrator, notwithstanding assets remained unadministered and unaccounted for, though not lost nor wasted.
    fi. Where, on motion for a new trial, on the ground that the verdict is against the evidence, and the objection to the verdict is its excessive amount, and the amount is not such as necessarily to imply the influence of passion or prejudice in the finding of the issue, on a remittitur of such excessive amount, it is not error to overrule the motion for a new trial.
    Error to the District Court Court of Putnam county.
    The original petition in the common pleas avers that the plaintiff’ is the administrator de bonis non of Robert Douglas, deceased ; that Ele Holmes was the former administrator of Douglas until his death, and Elam Day is his administrator; that Holmes, as administrator of Douglas, gave bond as provided by law, with John Buchanan and Moses Lee as sureties, which bond has been lost; that Holmes, as such administrator, received assets of the estate of Douglas to the amount of $2,300, of which he expended for the estate $800 ; and that no settlement was ever made by him in the probate court.
    The action is brought against the administrator de bonis non of Holmes, and the sureties on said bond.
    The petition' alleges that the conditions of the bond were broken as follows :
    That said Holmes, as such administrator, failed to render any account whatsoever of his doings, as required by law and the conditions of his bond.
    That he failed and neglected to administer according to-law the moneys, goods, chattels, rights and credits of said estate.
    That he appropriated to his own use a large amount of the assets of said estate, and wholly failed and neglected to account for the same as he was required to do.
    It is also averred that the plaintiff, as administrator de bonis non of said estate, demanded payment of said Elam Day, administrator of the estate of Holmes, for said assets so converted, which was refused by him.
    To the petition the several defendants filed separate answers, in substance, as follows :
    Elam Day, as administrator of Holmes’ estate, denying that the said Holmes’ estate was indebted to the plaintiff in any sum whatever, and affirming that he (Holmes) as the administrator of Douglas had-fully accounted for all mouey and property that he had ever received as such administrator.
    Moses Lee denied the execution of the bond, and alleged that the assets of the estate received by Holmes had been accounted for.
    Hiram Sarbar, as executor of John Buchanan, answered in substance the same as Lee.
    To these several answers the plaintiff replied, affirming the allegations of the petition, and denying the allegations of the several answers as to the new matter set up by the defendants, wherein they alleged that the assets of the estate had been accounted for.
    The ease was tried to a jury, who returned a verdict for the plaintiff for $1,649.31.
    The defendants moved for a new trial, on the ground that the verdict was contrary to the evidence. Thereupon, the plaintiff, by leave of the court, entered a remittitur of $799.31, and the court overruled the said motion, and entered judgment for the sum of $850, being the amount of the verdict less the amount so remitted.
    The defendants excepted, and filed their bill of exceptions, embracing all the evidence and the refusal of the court to charge certain propositions of law therein set forth, as follows:
    
      “ 1. That unless they find from the evidence an ascertained amount, determined by the judgment or finding of a court of competent jurisdiction, due from Ele Holmes, deceased, to the estate of Robert Douglas, deceased, upon his administration of said estate, the plaintiff can not recover.
    “ 2. That even if they find that Ele Holmes, as such administrator, did not make his showing and return of his administration and settlement as the law directs, still the plaintiff can not recover, unless a specific injury and loss to Douglas’ estate, in consequence of such negligence on the part of Ele Holmes, is proven to have occurred, and then only to the extent of such specific injury and loss.
    
      
      “ 3. That in any case the plaintiff can only recover for such amount charged in the inventory of said estate as he has converted into money, or has wasted by negligence or mal-administration, which said several charges the court refused to give to the jury, to which said refusal and ruling of the court the defendants excepted.”
    The case was then taken to the district court upon petition in error, filed by Elam Day, as administrator of Ele Holmes, and Moses Lee. That court found that there was error in the record and proceedings in this, to-wit: “ That the petition does not set forth that a settlement in probate court, or ascertainment against administrators, before action, was brought in common pleas;” and reversed the j udgment, and ordered that the cause be remanded to the court of common pleas for further proceedings.
    The court of common pleas thereupon, on motion of the defendants, the plaintiff taking no action to amend the petition, dismissed the case, and rendered judgment against the plaintiff' for the costs.
    To reverse the judgment of the district court and the last judgment of the- common pleas, the plaintiff prosecuted his petition in error in the Supreme Court.
    
      Swan & Moore for plaintiffs in error.
    
      Elam Day and J. L. H. Long for defendants in error.
   Day, J.

The district court, it appears from the record, held that an administrator de bonis non can not maintain an action on the bond of his predecessor, whose powers ceased by death, unless the amount due to him as such administrator from the estate of the deceased administrator, has been first ascertained by the probate court.

"We do not concur in this holding; for, whether such amount be so ascertained or not, without statutory aid, no action could be maintained by the administrator de bonis non on the bond (Curtis v. Lynch, 19 Ohio St. 892), and the statute on which the action is founded, passed April 7, 1854 (S. & C. 619), contains no such prerequisite to the right of action.

It is only when an action is brought on an administration bond by a creditor, legatee, widow, or other distributee, under sections 182 and 183 of the “ act to provide for the settlement of the estates of deceased persons,” passed March 23, 1840 (S. & C. 566), that the plaintiff' is required, by the provisions of the statute, to allege and prove his right to a sum determinate and certain, liquidated by allowance, judgment, order, or award. State v. Cutting, 2 Ohio St. 1; Dawson v. Dawson, 25 Ohio St. 443.

The reason of this statutory distinction is obvious. In one class of cases, the action is brought for the private benefit of the party instituting the suit, for whom the law provides plain and adequate modes for the judicial determination of the amount due to him from the estate, before resorting to a suit on the bond to enforce its payment. In the other, the action on the bond by the administrator de bonis non is for the benefit of all interested in the estate he represents, and, it would seem, is the only mode provided by law for enforcing a determination of the amount due to the estate.

The district court, therefore, were not warranted in reversing the judgment of the common pleas, for the reason ■assigned in the record.

But it is claimed that, although the district court reversed the judgment of the common pleas for a wrong reason, the judgment of reversal must be sustained for error in the common pleas in refusing to give the charges to the jury requested by the defendant, and in overruling his motion for a new trial.

Three propositions were requested to be given in the charge. The first, that the plaintiff could recover only upon proof of an amount previously adjudged to be due to the estate he represents, the court properly refused, for the reasons already stated. The second and third propositions were properly refused, for they tended to mislead the jury into a belief that the burden of proof does not rest on the representatives of the deceased administrator to account for the property proved by his inventory to have come into his hands, and also that they could find for the plaintiff only in case the estate had sustained a loss by the neglect of the deceased administrator to make his settlement as required by law, and, in any event, could recover no greater amount than what had been lost or wasted by such negligence, although there might remain in his hands assets unadministered and unaccounted for, but not lost nor wasted by his negligence.

The defendant moved for a new trial on the ground that the verdict was against the evidence. Thereupon the plaintiff, by leave of the court, without objection or exception on the part of the defendant, voluntarily entered a remittitur of a large amount of the verdict, and the court overruled the motion, to which the defendant excepted.

We can not say from the evidence that the verdict of the jury, so far as regards the finding of the issue in favor of the plaintiff, was unsustained by the evidence, or was influenced by passion or prejudice, though the amount found to be due was questionable. The remittitur, however, removed this objection; and upon the authority of the holding in Durrell v. Boyed, 9 Ohio St. 72, and Pendleton Street R. R. Co. v. Rahmann, 22 Ohio St. 446, we are constrained to hold that there was no error in overruling the motion.

Various exceptions were also taken by the defendant on the trial to the admission of evidence, some of which rested on points already disposed of, and others, manifestly not well taken, are not of sufficient importance to be further noticed than to say that, after careful consideration, on the whole record of the common pleas as it came before the district court, we think there was no substantial error to the prejudice of the defendant.

It follows that the judgment of the district court, reversing that of the common pleas, was erroneous; that its judgment, together with that of the common pleas subsequently rendered in pursuance thereof, must be reversed; and that the judgment of the common pleas so reversed must be affirmed.

Judgment accordingly.  