
    Joseph S. Seabrook, ads. Mark L. Williams, Adm'r. of the estate of Richard Freeman, Sen.
    
    There is no privity between the administrator oí an executor and the testator. An administration de bonis non must be taken out.
    But an administrator may bring an action upon a bond given to. his intes'. tale as executor of a third person; more especially where.the bond was given to the executor “ his heirs, executors, administrators he.”
    
    On the death of the testator, and eren before probate, his personal estate "is vested in the executor, who may maintain an action for any part of it, even before probate, 
      
    
    Tried at Colleton, before Mr. justice Waties in No■vember Term, 1825.
    This was an action of debt on a bond, of the date of 38th February, 1805, payable to Richard Freeman, Sen. of John’s Island, planter, executor of the estate of Jacob Rentz, deceased, conditioned for the payment of 3978 26.
    The pleas were non est factum and payment.
    
    The handwriting of the bond was admitted, where the plaintiff rested his case.
    The defendant moved for a non-suit, on the grounds that the plaintiff being but an administrator of the estate of Richard Freeman, Sen. who was executor ■ of the¡ estate of .Rentz, in the language of the law', it shall be taken to be a debt due to the testator, and after Freeman’s death, was a part of Rentz’s unadministcred estate ; and furthermore that the plaintiff being the wrongful holder of the bond, payment to him could be no bar to an action brought by an administrator de bonis non or any surviving executor of Rentz.
    The motion was overruled, and a verdict was found for the plaintiff.
    The defendant now moved the court of appeals for leave to enter a non-suit, and in arrest of judgment, on the following grounds :
    1st Because the bond in question belonged to the un~ administered estate of Jacob Rentz, which was not legally represented by the present plaintiff, as administrator de bonis non of the estate of Richard Freeman, sen.
    2nd. Because the plaintiff has sued as administrator of the estate of Richard Freeman, sen. otherwise called execu - tor of the estate of Jacob Rentz, thereby taking upon himself to represent the first estate, which is against law.
    
      
      
         But it seems he cannot declare till probate. (Salk. 302. Went. 34.)
      
    
   Johnson, J.

The only question of law arising out of the motion is, whether the plaintiff can maintain an action on a bond given by the defendant to his intestate in the character of the executor of Jacob Rentz ?

It may be admitted, and such clearly is the law, that there is no privity between the administrator of an executor and the testator, and that to establish such a relationship between the testator and another an administrator de bonis non must be appointed, on whom alone devolves the personal rights of the testator ; but it may be a question of some nicety always to distinguish between those things which have been administered by the executor and those which survive to the administrator de bonis non, in the solution of which a resort to principles becomes necessary.

On the death of the testator, and even before probate, his personal estate is vested in the executor, although he may never have reduced it to possession : so that he may maintain trover or trespass for any part of it against him who has taken possession of them before probate ( Com. Dig. Tit. Ad- •¡ninisiratíon. He may sell and dispose of the goods of his testator, or barter, exchange, or give them away, and, in fines; his dominion oyer them, is in law as absolute as overhis own goods, and I apprehend any- disposition by the executor of that which was the testator’s, although it be the mere substitution of one thing for another, is, so far, an administration of the effects ofhis testator. The liability of the executor is not measured by the value of what he may have in his possession, as the representative of that which was his testators; -the -law, therefore, properly regards the substitute or representative as his own and charges him with that which was the testators. The bond on which this action is brought nevér was the property of the testator of tlri plaintiff’s intestate; at best it is only the representative of wbat might have been his, but has been disposed of by his executor, which, according to the .principle, has been administered, so that nothing would survive to an administrator de bonis non, if such a person' was claiming. ■

This view of the subject is strengthened by another consideration. A court of law, for want of jurisdiction over the subject, cannot know that the executor has not fully administered all the assets of the testator and accounted' with those entitled to the last cent; and in that case, although he anight have retained possession, of that which had been his testator’s, yet when he had discharged all the obligations which that relationship imposed, his representative rights would be merged in his personal rights.

Independent of this principle, however; there is ano•> ther on which this action may be sustained.' The law in its great liberality permits persons to make the law of their own ■contracts, provided it imposes nothing contrary to positiveiri-junctions, or oflensive to morality. This bond is in' the usual form, and is an undertakiug to pay to the plaintiff’s intestate as executor oí Rents, £i his heirs, executors, administrators and assigns,” the sum mentioned in it. it is a part, therefore, of the law of the contract that the defendant will pay to the administrator of plaintiff’s intestate, which the defendant has broken; consequently the plaintiff is entitled to his action..

Clarke, for the motion.

Ford-h DcSaussiire, contra.

'Motion refused.  