
    Jones, Administrator, v. Willis, Administrator.
    
      Personal representative of an executor — Not liable to administrator de bonis non, when — Section 6020, Rev. Stat. — Interpretation of statute.
    
    The personal representative of an executor who died in office, before an account was due or filed in reference to the trust, is not liable, under section 6020, Revised Statutes, to the administrator de bonis non of the testator in an action brought against him alone as such personal representative, to recover for unadministered assets of the estate of such testator, where none of such assets came into the possession or under the control of such personal representative.
    (Decided March 18, 1902.)
    Error to the Circuit Court of Fayette county.
    [This case was heard and decided by the Northern Division of the court.]
    The plaintiff in error, in the year 1895, by the probate court of Fayette county was appointed administrator de "bonis non with the will annexed, of-James M. Willis, deceased and qualified as such. The predecessor in the trust was William R. Willis, who was appointed as executor of the wall without bond, in September, 1888. At the time of this appointment and acceptance of the trust, the executor, it is alleged in the petition filed in the common pleas court, was indebted to his father, the testator, in a large sum, which manured at different dates and in different sums between March, 1881, and the death of the testator, which sums with interest aggregate the sum of $19,182.81, for which the petition prayed judgment with interest from January 1, 1894.
    The plaintiff in error was plaintiff in that petition, and the defendant in error was made defendant. In January, 1890, and before any account with the trust was due or filed, William R. Willis, the executor, died. On the — day of October, 1892, the defendant, Madison Willis, was appointed and qualified as administrator of the estate of said William R. Willis, and in the same month and year he filed a statement or account in the probate court as to the doings and ■acts of said William R. Willis while he was executor of said will of James M. Willis, deceased, the testator.
    In this account or statement no reference was made to any of the alleged indebtedness of said William R. Willis to his testator at the time he accepted his appointment, and it was silent on that subject, but contained in substance a statement that no part of the estate of the testator had come into his possession as administrator of the estate of William R. Willis, and that there was nothing about which any account could be rendered by him as such personal representative of William R. Willis, formerly executor.
    Exceptions were filed to this statement or showing, by one or more of the legatees under the will of the testator, James M. Willis, on the ground that the administrator of the estate of William R. Willis, the defendant in error, who had been executor, did not charge himself with the debts which his intestate owed the estate at the time of his appointment. The probate court sustained the exceptions to the extent of the amount for which suit was brought in the court of common pleas, and charged the same against defendant in error, and the findings of the probate court in this respect are fully set out in the petition, as. ihe basis of the action against the defendant in error.
    The defendant demurred to the petition and the demurrer was overruled. The defendant filed an answer containing several defenses, which were after-wards amended and supplemented. To the several defenses the plaintiff in error, plaintiff below, filed demurrers, which were sustained by the court, and no further amendments being desired, the court found for the plaintiff. Exceptions were taken to the ruling of the court on the demurrer to the petition and also on the demurrers to the answer, and error was prosecuted in the circuit court and it was adjudged by that court, that the common pleas erred in overruling the demurrer to the petition; and erred in sustaining the demurrers to the defenses contained in the answer. Error is prosecuted in this court to reverse the judgment of the circuit court.
    
      Mr. Humphrey Jones, for plaintiff in error.
    
      Messrs. Harper &, Harper, for defendant in error.
   By the Court

We do not doubt that when one who is appointed executor of the will, or administrator of the estate of a deceased person, and accepts the trust, being at the time indebted to the estate, such indebtedness at once becomes assets in his possession, and are treated as so much money received. This has been repeatedly held by this court and is not in controversy in this case.

The plaintiff in error commenced his action in the lower court, relying on the provisions of section 6020, Revised Statutes, which reads:

“An administrator or executor appointed in the place of an administrator or executor who has resigned, been removed, or whose letters have been revoked or authority extinguished, shall be entitled to the possession of all the personal effects and assets of the*estate unadministered, and may maintain a suit against the former executor or administrator, and' his sureties on administration bond, for the same, and for all damages arising from the maladministration or omission of the former executor or administrator.”

In this case the facts show that William R. Willis, executor of the will of James M. Willis, died while in office and before any settlement account was due or filed. The will appointing him, as executor, directed that no bond be given and none was given. When we undertake to apply section 6020 to the facts plead in the petition, it appears to us quite clear, that it does not support the plaintiff’s claim and right of action.

The defendant, James Madison Willis, is the personal representative of William R. Willis, the executor who died.

Section 6020 confers upon the successor of an executor or administrator, “who has resigned, been removed, or whose letters have been revoked, or authority extinguished, a right to the “possession of all the personal effects and assets of the estate unadministered,” and also confers upon such successor the right to bring and maintain a suit against the “former executor, or administrator and his sureties on administration bond, .for the saíne,” etc. But this action is not against the former executor or administrator and his sureties on a bond; but is brought against the personal representative of such executor, who never had custody or possession of the assets in question.

We are of opinion that section 6020 does not cover the plaintiff’s case and does not authorize the present action. We believe that according to the wording'of tllis section the cases of Tracy v. Card, 2 Ohio St., 431, and Curtis v. Lynch, 19 Ohio St., 392, still have controlling effect on the facts in this case. The petition .failed to show a right to recover in the plaintiff. The ‘demurrer to the petition was well taken and should 'have been sustained by the common pleas.

The judgment of the circuit court is affirmed.

Affirmed.

Burket, Davis and Price, J.J., concur.  