
    Lewis, Administrator, v. Houston.
    
      Saturday, January 25, 1845.
    Petition in the Probate Court against ah administrator for payment of a judgment against his intestate, alleging waste, &e. The petition was filed in 1842, and before the expiration of a year from the time of the defendant’s appointment as administrator. Held, that, without evidence of waste, the suit could not be sustained.
    APPEAL from the Fayette Probate Court.
   Blackford, J.

— This is a petition, in the nature of a bill in chancery, filed in July, 1842, in the Probate Court of Fayette county, by the appellee against the administrator of Theodore R. Lewis, deceased. The petition states that the plaintiff obtained judgment at the fall term of the Fayette Circuit Court, 1841, against the intestate for a certain sum of money, which remains unpaid; that the intestate died in the fall of 1841, subsequently to the judgment, leaving a large quantity of goods and chattels; that the defendant had obtained letters of administration on the estate, received said goods and chattels, and wasted them, &c. Prayer, that the defendant show cause why he should not pay the judgment, and why he should not be removed as administrator.

The defendant, in his answer to the petition, admits the existence of the judgment, but insists that it is void as having been obtained by fraud. He denies the alleged waste, and relies on the fact that the petition was filed before the expiration of a year from the time of his appointment as administrator. The cause was tried on its merits by the Court, and judgment rendered against the defendant for one half of the amount of the judgment described in the petition.

The suit being objected to on account of the time of its commencement, and the objection appearing on the face of the petition, the plaintiff was authorized to proceed only in consequence of the allegation of waste. R. S. 1838, pp. 182, 191. The record, which contains all the evidence given in the cause, does not show that there was any proof whatever of the waste charged in the petition; and the judgment for the plaintiff is consequently erroneous.

G. B. Smith and J. S. Newman, for the appellant.

S. W. ParJcer, for the appellee.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.  