
    Henry B. Curtis, Administrator de bonis non, etc., of William Christmas, deceased, v. The Administrators of Arnold Lynch, deceased.
    L. being administrator of C., died without having settled his account with the estate. The administrator of L. filed in the probate court the account of L. as such administrator, to which the administrator de bonis non of O. filed exceptions, and the court, on hearing, found a balance due1 from the estate of L. to the estate of C. The administrator de bonis non of C. brought suit against the administrator of L., on the finding of the probate court, to recover the balance so due to the estate of O. Held, that the administrator de bonis non cannot maintain an action, on such finding, against the representatives of the deceased administrator, but that he must seek his remedy, under the statute, on the administration bond of the decedent.
    Error to the court of common pleas of Stark county. Reserved in the district court.
    Henry B. Curtis, as administrator de bonis non, with the will annexed, of William Christmas, deceased, on January 13, 1866, filed a petition in the court of common pleas against the administrators of Arnold Lynch, deceased, stating, in substance, that on the 8th of December, 1842, Lynch was appointed and qualified as administrator of Christmas, and as such received large sums of money belonging to the estate of Christmas, and continued to act as such administrator until the 20th of December, 1856, when he died, without having filed any account, and without having fully administered the estate of Christmas. That the administrators of Lynch, duly appointed and qualified, entered upon the discharge of their duties on the 19th of January, 1857; and that- Curtis was duly appointed and qualified as administrator de honis non of Christmas. That, on May 14 1859, the administrators of Lynch filed in the probate court of Stark county his account as administrator of Christmas, to which account Curtis, as administrator de honis non of Christmas, filed exceptions; and that such proceedings were had on the account and exceptions, that, on February 5th, 1861, the probate court, on final hearing, found in the hands of-Lynch, at his death, after allowing and deducting all payments, credits, and compensation to which he was entitled, the sum of. $26,800.79, which sum the probate court found and adjudged to be due from the estate of Lynch to the estate of Christmas, and that such finding and judgment are irt full force, and remain of record in the probate court. That, on the 11th of April, 1865, the administrators of Lynch filed in the probate court an account, showing a large sum of money to be in their hands belonging to Lynch’s estate, but also representing and showing that the estate was probably insolvent. That, on May 8th, 1865, the probate court declared the estate probably insolvent, and ordered the administrators of Lynch to proceed according to law as commissioners to receive and examine the claims against the estate, and to give notice to its creditors of its insolvency by publication for six months. That on the 6th of October, 1865, and within the six months, the plaintiff, as administrator de honis non of Christmas, presented to the administrators of Lynch, as commissioners, a statement of the findings and adjudication of the probate court, duly certified, etc., and showing the amount found by that court to be due from Lynch’s estate to the estate of Christmas, as a valid claim against the estate of Lynch, and that his administrators took the claim Under consideration, and on November 17th, 1865, filed in the probate court their report, and a list of claims allowed by them, but that in the report they disallow the claim so presented by the plaintiff. A certified copy of such statement is attached to and made a part of the petition. That on the 2d of June, 186J, there was paid to the plaintiff, on the claim by one of the sureties on Lynch’s administration bond, the sum of $7500, and that there is still due the plaintiff as administrator of Christmas, from Lynch’s administrators, the sum of $27,310, for which he asks judgment against them, etc.
    ' To this petition Lynch’s administrators demurred, -on’ the ground that it does not state facts sufficient to constitute a cause of action against them.
    The demurrer was sustained, and judgment entered for the defendants, and exception taken.
    To reverse the judgment the. plaintiff filed a petition in error in the district court, and the same was therein reserved to this court for decision.
    
      Bierce dé Pease for plaintiff in error:
    1. The probate court had jurisdiction of the parties and the subject-matter, in its proceedings on the account filed in that court by the defendants, and its findings and order thereon are conclusive. Both parties appeared and submitted to the jurisdiction of the court. It is therefore too late to call in question the jurisdiction of the court over the parties. The court had jurisdiction over the subject-matter, by virtue of sec. 2 of the probate act. S. & C. 1212.
    2. The plaintiff may sustain such an action as the one brought. The probate court, having exclusive jurisdiction over the conduct of administrators, could require the administrator of an administrator to settle the account of the deceased administrator. S. & C. 619, secs. 275, 276; 2 Ohio St. 432; Newell v. Newell, 2 Greenleaf, 75.
    
      Curtis dé Scribner, also for plaintiff in error:
    1. The defendants, as the administrators of Lynch, had power and authority to compel a settlement of his' accounts as administrator upon the estate of Christmas: In doing so, they did not assume, in any respect, to represent the estate of the latter, but they acted entirely as the representatives of Lynch, and their proceeding throughout is adversary in its character to the interests of the estate of Christmas. In such proceeding the estate of Christmas is necessarily represented by his administrator de bonis non. If, on a statement of the accounts, there is a balance due the estate of Lynch, it is the duty of his administrators to compel a settlement, and enforce the payment. In no other person is that power or duty vested by law. If Lynch has unfaithfully administered the trust, and there is a balance due from his estate, proceedings to ascertain and establish that balance must be taken against his administrators. Against no other person could such proceedings be instituted. It is plain, therefore, that the administrators of Lynch are the parties upon whom the law devolves the power and du.ty of compelling a settlement and adjustment of his accounts as the administrator of1 Christmas.
    2. In what .court should the administrators of Lynch proceed in order to compel such settlement ?
    Under our present law, the probate court is invested with exclusive jurisdiction in probate and testamentary matters. If Lynch, the deceased administrator of Christmas, were living, there can be no doubt but the probate court would have ample jurisdiction to pass upon his accounts. Does the fact that he is dead oust 'that court of its jurisdiction in this particular ? A proceeding to compel such adjustment and to determine the amount for which the estate of the deceased administrator shall stand chargeable, or the amount which is due that estate, may as well be had and concluded in the probate court as in the common pleas (7 Ohio, pt. 1, 200); and in view of .the fact that the probate court is created for the express purpose of passing on such matters, the propriety of proceeding in that court is very obvious. That being so, the action of that court is not Goram non judioe.
    
    The power of the probate court in administration matters is ample, and its orders made upon settlement of estates have the effect of a judgment. McLaughlin v. McLaughlin, 4 Ohio St. 508. The case of Newell v. Newell, 2 Greenleaf's Rep. 75, is directly in point, and decisive of the question now made. And see Storer v. Storer, 6 Mass. 390.
    3. The petition avers that the account was submitted to the action of the probate judge loy the defendants; that the plaintiff appeared and filed exceptions to the account, and also submitted tbe matter in difference between the two estates to the decision of the probate-judge. If, therefore, the action of the judge is not good as the action of the probate court, it is certainly good as that of an- arbitrator, mutually selected by the parties, to whom a submission may be made by parol. Childs v. Updyke, 9 Ohio St. 333.
    
      Geo. W. Raff for defendants in error:
    1. There is no common-law administration in this State. Every act of an executor or administrator, in so far as relates to the maimer in which an estate is to be settled, is directed and regulated by positive statute. The second section of the probate act (S. & C. 1212) confers upon probate courts power to “ direct and control the conduct and to settle the accounts, of executors and administrators;” but this power or jurisdiction must be exercised • inside the law regulating the settlement of the estates of deceased persons, and not outside and independent of it. The authority of the probate court is executive, not legislative. It cannot impose burdens upon executors or administrators which are unknown to the law; nor can it exact the performance of duties not clearly pointed out by law. Besides, the power “to direct and control the conduct and settle the accounts of executors and administrators ” refers to a subsisting executor or administrator over whose person the court has jurisdiction, and not to one whose powers have ceased by death, resignation, removal from office, or revocation of letters. The same persons whose accounts are to be settled are those whose conduct is to be controlled, and no others.
    In certain cases, at common law, the settlement of an estate, left unfinished by the death of the executor, was cast upon the executor of the executor, and the administration of the estate proceeded without interruption to the close. But that is changed by our statute. (S. & C. 568, sec. 10.)
    A full and adequate remedy is furnished by the statute for every default of an executor or administrator, and there is, therefore,-no necessity for calling into requisition the doubtful powers contended for by the plaintiff. S. & C. 619, secs. 275; 571, sec. 25. See also Tracy's Adm'r v. Card's Adm'r, 2 Ohio St. 431.
    The settlement of the accounts of executors and administrators does not necessarily belong to the probate court. If an executor or administrator remove out of the State without first making settlement of his administration; or if the resignation of an executor or administrator should be accepted before settlement made; or if the letters of an executor or administrator should be revoked for reasons set forth in sec. 55 of the administration act (S. & C. 576), and in every case in which the probate court has not power over the person of the executor or administrator — the settlement of the account of the delinquent is not with the probate court, but with the court of common pleas, under proceedings on his bond, by virtue of sec. 55 of the administration act (S. & C. 576), or the act of April 7, 1854 (S. & C. 619, sec. 275). See also Washburn v. Dorsey, S. & M. 214; Succession of Rachel, 12 La. Ann. 717; Bank of Muskingum v. Carpenter's Adm'r et al., 7 Ohio, pt. 1, 21-71.
    2. The finding of the probate court cannot be treated as a common-law award. There was no agreement to submit the matter in controversy to arbitration. The probate judge assumed jurisdiction of the matter, and passed upon it in his oficial capacity. But if the finding should be treated as an award, it would have no judicial force (Childs' Ex'r v. Updyke, 9 Ohio St. 333). If the failure to perform it constituted a cause of action, it is barred under the six months’ limitation. S. & C. 582, sec. 88.
   Day, J.

The suit was brought by the administrator de bonis non of the estate of Christmas against the administrators of the estate of Lynch, to recover the amount found, by the probate court, to be due from the estate of Lynch to the estate of Christmas, on an account rendered by the administrators of Lynch of their decedent’s administration of the estate of Christmas, who died while in office, without having rendered his account with the estate.

It is claimed that the action may be maintained for the balance found due to the estate of Christmas on the finding of the probate court, either as a debt of record, evidenced by the judicial finding of the court, binding the defendants, or as a common-law award conclusive against them.

As to the claim of recovery on the finding of the probate court as an award, we deem it only necessary to say, that nothing appears in the record indicating a purpose of the parties to submit any matter of difference between them to the arbitrament of the probate court; on the contrary, whatever was done by the probate court was regarded as being done only in a judicial capacity. Aside from other objections to a recovery as upon an award, there is no ground on which the finding of the court can be treated or regarded as an award.

As to whether it was the duty of the administrators of Lynch to render to the probate court an account of their decedent’s administration of the estate of Christmas, or whether that court had jurisdiction in the matter, we do not find it necessary to determine. Nor (on the view we take of the case) is it necessary to determine, in this case, what the legal effect of the finding of the probate court is, even if it had jurisdiction of the parties and the subject-matter.

This is a suit by the administrator de bonis own of the estate of Christmas, against the administrators of the deceased administrator of the same estate, not to recover unadministered goods ioi specie, but, as the record plainly shows, to recover the amount found due from their decedent’s estate for money that never came to their hands. At common law, no action of this kind could be sustained by the administrator de bonis own, against the representatives of the deceased administrator. Where the deceased administrator had disposed of the goods of the estate wrongfully, the wrong died with him. “This was esteemed actio personalis qurn onoritur cum persona.” 4 Bac. Abr. 140. But such suit could be maintained only by creditors, legatees, and distributees of the first decedent. Young v. Kimball, 8 Blackf. 167; Finn v. Hempstead, 24 Ark. 111; and M'Murdo v. Prentis, 5 Rand. 51. In M'Murdo v. Prentis the subject,is fully dis« cussed, and it has been regarded a leading case, and been followed in many of the States. This rule of the common law has, however, undergone various statutory modifications, both in this country and England.

It was held in Blizzard v. Filler (20 Ohio, 479), that, “without the aid of legislative provision, it is undeniably clear, that no right of action arises in favor of the administrator de bonis non, either against the representatives of the deceased administrator or the sureties in his official bond.”

This case was approved in Card v. Tracy (2 Ohio St. 431), when applied to the representative of a deceased administrator who died in office.

These cases settle the question in this State, that an administrator de bonis non cannot maintain an action like the one before us, without legislative aid. The case of Blizzard v. Filler, supra, determines that the 26th section of the administration act (S. & C. Stat. 571), “ leaves the matter as it stood at common law.” We have no other legislation that affects the question, except the act of April 7, 1854, “ concerning suits on the bond of executors and administrators.” S. & C. Stat. 619. This act only confers power to “maintain an action on the bond of such executor or administrator whose powers have ceased ” by death or otherwise.

The legislature has provided an ample remedy on' the bond, leaving the common-law rule not otherwise affected.

The case of Storer v. Storer (6 Mass. 390) is the only one that has been brought to our attention where an action in a case similar to this has been sustained. The first decedent in that case died in 1768, and the case was decided in 1803. The right of the administrator de bonis non to bring the action was not questioned, and how the question was affected by statutory provisions, we are not informed. Moreover, in that case “ a decree was passed ” in the probate court, “ directing the defendants to pay the balance to the plaintiff.” In this case there was no such decree or order of the probate court; but at most, the court only adjudged what was the amount of the balance due from one estate to the other.

In a later case, however, in the same State (Monroe v. Holmes, 9 Allen, 244), arising under administration laws similar to those of this State, where an administration account was rendered as in this case, but the balance found due was from the estate of the first decedent to that of his administrator, the court refused to sustain an action on the finding of the probate court, in favor of the administrator of' the deceased administrator, against the administrator de bonis non of the first decedent, but left him to his remedy on the administration bond.

What effect the settlement of the deceased administrator’s account in the probate court may have in a suit brought on the bond of the deceased administrator, we need not now determine. We are, however, satisfied that, as the law now stands in this State, the present action cannot be maintained on the cause of action stated in the petition. The court of common pleas, therefore, properly sustained the demurrer to the petition, and it follows that the judgment of that court must be affirmed

Brinkerhoff, C.J., and -Scott, Welch, and White, JJ., concurred.  