
    S. H. Buckingham et al. vs. James Owen.
    0., in February 1840, obtained judgment at law against G. & B. S., as administrators of M. S., deceased; in July 1839, G. & B. S. had resigned their letters of administration, and J. R. G. been appointed administrator de bonis non of M. S., and was in that office when judgment in favor of O. was rendered : Held, that the judgment in favor of O. thus obtained was neither binding upon the estate, nor upon J. R. G. the administrator, and was a nullity.
    The sureties of an administrator upon his official bond cannot be sued in equity by a judgment creditor, for a devastavit committed by the administrator; the remedy of the creditor is by action at law upon the bond.
    G. & B. S. administered upon the estate of M. S., when O. obtained judgment at law against them as such administrator ; G. & B. S. resigned their office, and J. R. G. was appointed administrator de bonis non, took possession of the estate, used and wasted the assets, and died insolvent, and without personal representatives ; D. was appointed administrator de bonis non of M. S., and represented the estate insolvent; whereupon O. filed his bill in chancery, against the sureties of J. P. G. on his bond, to compel them to pay his judgment: Held, that a court of chancery had no jurisdiction of the bill.
    On appeal, from the vice chancery court at Fulton ; Hon. Henry Dickinson, vice chancellor.
    James Owens filed his bill, alleging that on the 28th day of February, 1840, he recovered, in the circuit court of Monroe county, in this state, a judgment for the sum of $1832 70, against George W. Sims and Bartlett Sims, administrators of Matthew Sims, deceased; that on the second day of July, A. D. 1839, the said George and Bartlett Sims resigned their letters of administration, and one John R. Greer appointed administrator de bonis non. That William Hill, Charles M. Weaver, Sterling H. Buckingham, William Smith, and London J. Carter, were securities on the administration bond of Greer; that Greer took possession of the goods, chattels and eifects of Sims unadministered ; that he collected a large amount of money due the estate and applied it to his own use, and disposed of it not in liquidation of his intestate’s debts; and that in the administration of the estate, Greer had committed a devastavit, for which he and the sureties on his bond were liable to answer; that Greer died about the middle of September, A. D. 1840, intestate and wholly insolvent, and no person had taken out letters of administration upon his estate; that after the death of Greer, on the 21st of December, 1840, Reuben Davis was appointed administrator de bonis non upon the estate of said Sims, and had reported the estate insolvent to the probate court; that the debt and costs evidenced by the complainant’s judgment, were still due; and the bill therefore prayed that the sureties on the bond of Greer might be compelled to pay the said judgment and costs.
    The defendants demurred to the bill for want of jurisdiction; the court below overruled the demurrer, and the defendants appealed.
    
      Davis, for appellants.
    
      J. M. Acker, for appellee.
    The complainant being a stranger, and not a creditor of Greer, had no right to become the administrator. He stands in attitude of creditor of Greer’s intestate, and not as creditor of Greer; and even though he had administered, he would have stood in the unenviable attitude of trying to fix a liability on himself as administrator, for the use and benefit of himself as a private individual, and as creditor of the estate of which his intestate was administrator. Neither has any court in this' state the authority to administer, or of compelling any person to administer, as in some states in the union.
    The defendants, as securities of Greer, agreed and undertook to make up any defalcations that he might commit while acting as administrator. The law does not make them, by virtue of signing the bond of the administrator, officers of the court of probates; the court of probates has no jurisdiction over them; it cannot reach them by citation or bring them before it for any purpose. The liability must be first fixed upon their principal, the administrator, before they can be reached. This liability must be fixed in the probate court. See McRea v. Walker, 4 How. R. 455 ; Green v. Tunstall, Ibid. 638. Now it is evident that the estate of Greer must be represented before any liability can be fixed upon it. The complainant has no power to create a representative of the estate of Greer, nor to fix, without such representative, any liability on his estate; nor can his securities, the defendants, be reached un til such liability is fixed on their principal. See Probate Court v. Phipps, 5 How. R. 59; Carmichael v. Broxoder, 3 Ibid. 252, and cases above cited from Howard’s reports. This case presents a legal right without any legal remedy. That the probate court has full jurisdiction in all matters of probate, and matters testamentary, is admitted; but the constitution gives the superior court of chancery “ full jurisdiction in matters of equity.” And I lay it down as a correct position, that although a case may have sprung from a matter testamentary, yet the chancery court would entertain jurisdiction if there is no satisfactory remedy in the probate court. This is a case most peculiarly within the jurisdiction of a court of equity. There is no remedy at law; none in the probate court, for want of an administrator of Greer. It is everywhere decided that a court of chancery will entertain jurisdiction where there is a right, and no legal or other remedy, or if the court of equity can afford a remedy more full, ample and complete, than any other tribunal. It is believed that no parallel case to the one under consideration has been decided by our high court of errors and appeals. The law books furnish but little authority for the appellees, and none, as is believed, for the appellants. The chancellor based his decision for the complainants upon the authority of a case reported in 4 Munf. 289. That case is fully parallel with the present, and fully decides and settles the point in controversy. See Spottswood v. Dandridge, 4 Munf. 289. It is then believed that inasmuch as the chancery court has full jurisdiction under our constitution over all matters of equity, and that although the probate court has jurisdiction in all matters testamentary, yet it does not take away any jurisdiction by the common law peculiarly conusant in a court of equity; that the remedy is in chancery, and not in the court of probates.
   Mr. J ustice Clayton

delivered the opinion of the court.

This is an appeal from the vice chancery court at Fulton.

The bill alleges the recovery of a judgment in the circuit court of Monroe county, in February, 1840, against George and Bartlett Sims, as administrators of Matthew Sims, deceased, but that previous to said judgment, in July, 1839, the said administrators resigned, and one John R. Greer was appointed administrator de bonis non of the said estate. It also alleges that Greer wasted a large portion of the assets which came to his hands, leaving not enough to pay the debts of the estate; that he has died insolvent, and that there has been no administration upon his estate; that Reuben Davis has since become administrator de bonis non of the estate of Sims, and has suggested its insolvency. This bill is filed against the sureties of said Greer, the plaintiffs in error, to compel them to pay the judgment of the complainant.

There is a general demurrer to the jurisdiction of the court, which is the sole question for consideration, and which was overruled in the court below.

The judgment against George and Bartlett Sims, rendered some six months after their connection as administrators had ceased with the estate, was not binding either upon the estate or upon John R. Grper, the administrator de bonis non. Indeed, it was a nullity. No execution was ever returned upon it. If the judgment had been against Greer, the administrator, the right of the complainant against the estate, would then have been established.

But even in that attitude of case, we do not see upon what principle the jurisdiction of a court of chancery could be sustained in this state over the subject-matter. The case of Spotswood v. Dandridge, 4 Munford, relied on in argument, cannot have the effect to establish such doctrine here. In some of the states it is settled that courts of equity have concurrent jurisdiction with courts of law, in suits against executors. 4 Johns. Ch. R. 631. The jurisdiction exercised by the court of chancery in Virginia, is upon this principle. But a very accurate writer of recent date, says that the court of appeals of that state now manifests a strong tendency to exclude from the jurisdiction of equity, all cases in which a full remedy can be had at law. 2 Rob. Pr. 38. In the case cited, as well as in Sampson v. Payne, 5 Munf. 176; and 2 Hen. & Munf. 8, the bills were filed for a discovery, and account of assets, and were retained in equity, to have the whole matter settled there, to avoid circuity of action. This bill does not even contain that prayer, which was probably essential to the jurisdiction in that state.

A bill was filed in the probate court of Claiborne county, against the administrator and his sureties for a discovery and account of assets, and for distribution. The object was similar to that in view in this case. Green v. Tunstall, 5 How. The very authorities cited to sustain this bill, were cited in the argument of that cause. The court decided that the remedy upon the bond, was exclusively in a court of law.

The chancery court erred in overruling the demurrer, and in entertaining jurisdiction. The decree is therefore reversed, and the bill dismissed.  