
    Thomas B. Woodward, Judge of Probate of Yazoo county, use of Harris, Wright & Co. vs. George Fisher, B. R. Grayson and Nancy Ann Brown, administrators and administratrix with the will annexed of Jesse S. Brown, deceased.
    While it seems that a great and sudden depreciation in the value of property might so change the condition of an estate, as to excuse an administrator from liability for debts previously paid ; yet if the administrator has had the estate an unreasonable time before he declared it insolvent, after having paid debts in full, or if the insolvency is the fault of the administrator, it seems the depreciation in the value of the property will not protect him ; if he returns an estate insolvent after paying debts, he must have a clear and undoubted excuse.
    Therefore, where to an action on an administrator’s bond, the breach assigned was maladminstration in paying debts of the intestate in full, leaving a judgment against the intestate, held by plaintiffs, wholly unpaid, and the defendants plead acknowledging the payments, but averring that they were made after the lapse of nine months from the grant of administration, in good faith, under the belief that the estate was solvent, but that it had since become insolvent by a depreciation in the value of the property ; it was held, the reply to the breach was insufficient; it might be true, and yet there have been the grossest maladministration.
    To a breach assigned in an action on an administrator’s bond, that the defendants had maladministered, in selling real estate to the amount of fifty thousand dollars for the payment of debts, which they had failed to pay out in the course of administration, the defendants replied, that before the money was received, the estate was reported insolvent; held, the reply was insufficient ; if true, it was no excuse for not paying those entitled when they received the money.
    Toa breach in alike action, that the defendants had paid out twenty-four thousand dollars towards debts wrongfully contracted by them after their testator’s death, when the estate was insolvent, and not in the due course of administration, and left unpaid plaintiff’s judgment, the defendants answered, that they paid the money out on contracts rightfully made by them, in pursuance of the.will of their testator; held, the reply was insufficient; the creditors of an insolvent estate have equal claims, though there be a will; and if that authorized the defendants to make contracts, the facts should have been pleaded for the court to determine whether they were rightfully or wrongfully made.
    In an action on an administrator’s bond, the plaintiff offered in evidence, the record of a judgment against the three administrators, cum testamento annexo, in a suit commenced against their testator in his lifetime, and revived by scire facias against them ; two of the administrators were rightfully served with the scire facias, but the record did not show a legal service on the other ; the judgment was rendered in the year 1838, against all three, and they took no steps to reverse it ; it was held, that the record was properly admissible, as evidence of an indebtedness of the estate to the plaintiffs ; that even if the service on two of three administrators was not sufficient as against the third, (and the court intimate that it was,) yet the judgment as to them was only erroneous, not void, and by lapse of time had become incapable of being reversed, and was evidence of a debt against the estate.
    
      It seems, that where an action is brought on an administrator’s bond, and the defendants in the pleadings are styled administrators, &c., with the will annexed, and a judgment is offered in evidence rendered against them, generally as administrators, the variance, if any, will be immaterial.
    On appeal from the circuit court of Yazoo county; Hon. Robert 0. Perry, judge.
    Thomas B. Woodward, judge of the probate court of Yazoo county, for the use of Ezekiel Harris, Hamilton M. Wright, William Harris, William K. Ferguson, John H. Gillett, and Moses T. Hoff, constituting the late firm of Harris, Wright & Co., sued George Fisher, Beverly R. Grayson, and Nancy A. Brown, Little W. Brown, and Morgan L. Fitch, upon the administration bond of the three former, (with the two latter as their sureties), as administrators and administratrix, with the will annexed, of Jesse S. Brown, deceased, in the penalty of one hundred and fifty thousand dollars. The defendants plead the condition of the bond, and their performance thereof. The plaintiff replied the following breaches.
    1. That the said Nancy A. Brown, administratrix, and George Fisher and Beverly R. Grayson, administrators of Jesse S. Brown, with the will annexed, have not properly accounted for the sum of fifty-three thousand, nine hundred and fifty-five dollars and fifty cents, the amount of the inventory of the said Jesse S. Brown, made by the appraiser and returned by the administrators and administratrix.
    
      2. That the administrators and administratrix paid to George Fisher & Co. a large sum of money, to wit: (Here specifying them, amounting to $4731 '98), for debts illegally contracted by the administrators and administratrix, after the death of Brown, and not in the course of administration.
    3. That they (the administrators and the administratrix) had paid out large sums of money, amounting to $24,8774)7¿, the full amount of certain debts due by Jesse S. Brown in his lifetime, and left wholly unpaid and unsatisfied the judgment of Harris, Wright & Co.
    4. That they sold real estate belonging to the estate of Jesse S.Brown, to the amount of fifty thousand dollars, for the payment of the debts of Jesse S. Brown, but which sum they had wholly failed to pay out in the due and legal administration of the estate. Í
    5. That they sold fifty thousand dollars’ worth of the real estate of Brown, which thus became assets in their hands to pay his debts; and had wholly failed to pay the debt of Harris, Wright & Co., or properly to pay out in the course of administration.
    6. That they wrongfully suffered judgments, to the amount of twenty thousand dollars, to be rendered against them in the Yazoo circuit court, without pleading the statute of nine months before suit could be brought against them; by which the estate lost twenty thousand dollars.
    
      7. That they paid twenty-four thousand dollars of debts wrongfully contracted by them, after Brown’s death, when the estate was insolvent, and not in the due administration of the estate, leaving unsatisfied the judgment of Harris, Wright & Co.
    8. That they wrongfully suffered judgments to be rendered against them, after Brown’s death, - and the property of the estate, assets in their hands, to be sold under execution, to the amount of forty thousand dollars, when the estate was insolvent, they wrongfully giving preferences to the holders of the judgments; by which the estate lost twenty thousand dollars.
    To the first breach, the defendants rejoined, that they had properly accounted for the inventory, &c.; and issue was joined thereon.
    To the second breach, “that they did not pay to George Fisher & Co. the sums alleged, for debts illegally contracted by them; ” upon this, issue was also joined.
    To the third breach, they rejoined, 1. That although it was true that they had paid out a large sum of money, the full amount of certain debts due by Jesse S. Brown, yet that these debts thus due were legally and properly paid by them in the course of administration; and 2. That these debts were paid by them after the lapse of nine months after the grant of letters of administration, bona, fide, under the belief, from the then value of the property of the estate, that the estate was solvent, and that the estate had since become insolvent by depreciation of property; and 3. That although they paid these debts in full, yet the probate court of Yazoo county had received and allowed a settlement of one of the administrators, in which this fact of payment is specifically set out.
    To the first of these rejoinders to the third breach assigned, the plaintiffs surrejoined that the debts paid in full were not legally and properly paid in the due course of administration; to the second, they demurred; and to the third, surrejoined that the probate court of Yazoo county did not receive and allow the settlement, as stated. Issues were tendered and taken on the first and third surrejoinders to the third breach.
    "To the fourth breach assigned, the defendants rejoined, that before any of the money arising from the sale of the land was received, the estate was duly declared insolvent. To this the plaintiffs demurred.
    The defendants further rejoined to the fourth, and also to the fifth breach, by a denial of the sale of land, to the amount of fifty thousand dollars, for the payments of the debts of Brown. On this rejoinder issue was taken.
    The defendants, to the fifth breach rejoined, that the proceeds of the sales of the lands of Brown were not liable to pay the judgment of plaintiffs, because, before they received the money arising therefrom, the estate was duly declared insolvent. To this the plaintiffs demurred.
    The defendants rejoined to, by traversing, the sixth breach, and issue was taken. To the seventh breach, the defendants rejoined that, although it was true that they had contracted and paid $>24,000 of debts since Brown’s death, yet they had not done so wrongfully; they were such debts as by the last will and testament of the said Brown, they were authorized and empowered to contract. To this the plaintiffs demurred.
    To the eighth breach, the defendants rejoined, that they did not wrongfully suffer judgment, &c., as alleged; that, at the time the judgments were obtained, and the assets in their hands sold under execution to pay them, they thought, from the value of the property in their hands, that the estate was solvent; and that, in permitting the assets to be sold, they acted in good faith, and, as they thought, in discharge of their duty, and to the best interest of the estate.
    The plaintiffs surrejoined to the rejoinder to this eighth breach, by traversing it, and issue was accordingly taken.
    The court below overruled all the demurrers of the plaintiffs, who refused to surrejoin ; and the cause was submitted to a jury on the issues joined.
    On the trial, the plaintiffs offered to read to the jury the record of the proceedings in the suit of Magnus S. Rogers and Vincent Galloway, for the use of said Harris, Wright & Co., against the administrators and administratrix of Jesse S. Brown, deceased. This suit was commenced on the 11th of March, 1836, against Brown, in his lifetime; on the 31st of October, 1836, Brown’s death was suggested, and an order to revive made. A scire, facias against his representative issued on the 13th of April, 1837; this not being executed, an alias issued on the 30th of March, 1838, on which the sheriff returned as follows : “Received 31st of March, 1848; executed by handing defendants, Nancy Brown and B. R. Grayson, a copy; and, as to George Fisher, by leaving a copy of the same at his place of doing business, with a white person over the age of sixteen years, being one of his clerks, who was then and there willing to receive the same. April 6, 1838. J. S. Young, deputy-sheriff, for P. Buford, sheriff.” The judgment rendered thereon, on the 4th of May, 1838, was as follows: “This day came the plaintiffs, by their attorneys, and the defendants, though solemnly called, &c., came not, but made default; it is therefore considered by the court that the plaintiffs recover of the defendants the sum of $1033-88, by reason, &c.; to be levied of the goods and chattels, rights and credits, which were of the said Jesse S. Brown, at the time of his death, in the hands or possession of the said administrators and administratrix, not already' administered; the estate being reported insolvent, no execution to issue.”
    The defendants objected to the reading of this record, 1. Because it appeared that the scire facias had not been properly executed as to one of the defendants. 2. Because the judgment was against the defendants, administrators and administratrix merely, and the breaches were assigned against them as administrators and administratrix, with the will annexed.
    The court below sustained the objection; the jury found for the defendants, and the plaintiffs appealed.
    
      Wm. E. Pugh, for appellants.
    1. The objection taken by the defendants to the return of the sheriff on the scire facias, cannot be tenable, because the defendants cannot collaterally impeach a judgment which was at the time in full force against them. If the judgment was erroneous, they should have reversed it by writ of error. This court has said, where there has been a defective return of process, collaterally, the decree cannot be attached, (Smith v. Bradley, 6 S. & M. R. 485); and I presume the same rule would apply to a judgment. But this return is not defective. It is in substance a compliance with the requisitions of the statute. How. <fc Hutch. 583, sec. 27.
    2. The other objection, that the record could not be read in evidence, because the breaches declare the defendants to be administrators with the will annexed, and the judgment sought-to be read in evidence against them, was rendered against them as administrators, cannot prevail; because, if a distinction there be, it is one without a difference. The duties and liabilities of both are the same, and the only distinction that can be made is, that the law regulates the duties of the one, and the will the other; or, in other words, the administrator must look solely to the law for his guidance. The aministrators with the will annexed, must execute the provisions of the will according to the law, when not incompatible with the law. The pleadings follow the administration bond. The objection goes only to the evidence, and the evidence, shows an indebtedness against the estate of Jesse S- Brown, in favor of the plaintiffs, which the estate is bound to pay; and being so, is good evidence to go to the jury against the defendants in this action.
    
      3. The questions raised by the several demurrers to the defendants’ rejoinders, are as plainly raised by the pleas as I can do it in a brief; and whether they should have been sustained or overruled, will be readily seen by the court.
    
      W. R. Miles, for appellees.
    The court below properly ruled out the judgment of Rogers and Galloway, for the double reason, that the scire facias was improperly executed by the sheriff, and that the judgment offered in evidence was not the same as that described in plaintiffs’ pleadings.
    Plaintiffs’ demurrer was properly disallowed to the second rejoinder by defendants to plaintiffs’ third replication. The facts stated in the rejoinder, and admitted by the demurrer, make a much stronger case than the one decided by this court in 3 S. & M. 625.
    It is equally clear that plaintiffs’ demurrer to defendants’ rejoinder to the fourth replication was badly taken, and should have been overruled. For it is manifest that the administrators could not pay out funds in their hands, after the estate had been declared insolvent, and their failure to do so was not a breach of their bond. The same reason holds good in regard to plaintiffs’ demurrer filed to defendants’ rejoinder to the fifth replication.
    The rejoinder to the sixth replication was demurred to by plaintiff, I suppose for the purpose of “ keeping his hand in.” It is needless to give a reason why that demurrer ought to have been overruled.
    The demurrer to defendants’ rejoinder to plaintiffs’ seventh replication presents too naked a point for argument. It alleges that no debts contracted by the administrators were paid, except such as they were authorized to contract by the last will and testament of their testator. This fact being admitted by the demurrer, forecloses all controversy.
    
      John Battaile, on same side.
    1. The record of the judgment was properly rejected. The writ of scire facias was certainly not properly executed on George Fisher. He is not stated in the return to have been from home. See H. & H. 583. And the variance between the description of character, of the defendants in the judgment, and the description of character in which they are alleged in the assignments of breaches, to have committed breaches of the administration bond, is most palpable and material.
    2. Are administrators, who bona fide pay debts due by their testator in his lifetime, after the lapse of nine months after the grant of administration, under the belief from the then value of property, that the estate is solvent, liable to other creditors as for a devastavit, if afterwards, from the depreciation of property, the estate becomes, and is declared, insolvent 1
    
    3. Do administrators, with a will annexed, who, under the bona fide belief-that the estate is solvent, pay debts contracted on account of the estate, which are authorized to be contracted and paid by the provisions of the will, commit a breach of their bond, if afterwards the estate become insolvent, and is so duly declared? It has often been held by many of the most respectable authorities, that where an executor, or administrator acts from good motives, and in good faith, but under a mistake, and a loss or injury accrues to the estate, or those interested in it, he will not be liable. 2 Lomax on Ex. 229, 230; 5 Greenl. R. 45; Comyn, Dig. Ass. (D); Toller on Ex. 428 ; 3 Bac. Abr. Tit. Ex. & Adm. 77, 78 ; Amb. 160 ; 3 Barn. & Aid. 360 ; 2 Johns. Cas. 376; 3 J. R. 249 ; 4 Dow. 551 ; 6 Halst. R. 145, 148; 4 Gill & Johns. 453; 3 Am. Dig. 281. And this principle has been recognized and expressly declared by this court. "Young Berry, adrrdr v. W. R. Parkes et al., 3 S. & M. 625; M. A. Gordon v. Gibbs, Pro. Judge, &c., 3 S. & M. 473, 491. Our statute says, that no loss shall be sustained by the administrator in the decrease of the estate. H. & H. Dig. 414, sec. 96. In regard to executors and administrators as trustees, acting for the benefit of others, courts are extremely liberal. 4 J. C. R. 623 ; Ambler, 219 ; 5 Ves. 843 ; 1 Madd. C. 114. An executor, or administrator is liable only to the amount of assets in his hands, and no more. 5 Cranch, 19 ; H. & H. Dig. 396 ; 6 S. & M. 199.
    
      The return of nulla bona is not conclusive, in respect to a devastavit, and the administrator may show in defence the insolvency of the estate, after judgment was recovered. 5 Green!. R. 45.
    
    In case of the insolvency of an estate, all creditors stand on a footing of equality. 2 How. 106. No executor, or administrator shall be chargeable beyond the assets of the estate, by reason of any omission or mistake in pleading, &c. H. & H. Dig. 396. Nothing is deemed sufficient to create a presumption of assets. 2 How. 617.
    But this case is clearly in favor of the defendants, because the pleadings admit, that after the acts done by the administrators, which are alleged as breaches of the condition of their bond, the estate became insolvent by the depreciation of property. H. & H. Dig. 414, sec. 96.
    All debts contracted by administrator, who is lawfully carrying on a farm, so far as such contracts are for necessaries, are privileged claims on the income of the place; and if the proceeds of the crop have been appropriated to the payment of debts due from the deceased in his lifetime, or have been declared assets, then such creditors are entitled to payment out of any other fund of the estate. Emanuel et al. v. Norcum & Burwell, Adm’rs, 7 How. 150.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

In an action on administrators’ bond, the plaintiffs assigned various breaches, in reply to a plea of conditions performed, to which the defendants rejoined. To several of the rejoinders the plaintiffs demurred generally, and the court overruled the demurrers. On the trial the plaintiffs offered in evidence the record of a judgment, recovered by them against the administrators, in a suit brought against Brown in his lifetime. This was rejected; and the overruling the demurrers, and the rejection of this record, are now assigned for errors.

The first demurrer was to the rejoinder of the third breach assigned. The breach is, that the defendants did not truly administer the assets that came to their hands in this,— that they paid $24,877, the full amount of certain debts contracted by Brown in his lifetime, and left wholly unpaid the judgment of the plaintiffs. The rejoinder confesses the payments, but avers that they were made, after the lapse of nine months from the grant of administration, in good faith, under a belief that the estate was solvent, but that it had since become insolvent, by a depreciation in the value of property.

An answer to the assignment of a breach, to be good, should present a bar to the plaintiffs’ action. Does this do so? It presents no reason whatever for a failure to pay the plaintiffs’ distributive share, even admitting the estate was properly declared insolvent; nor does it aver, that the assets had been entirely exhausted. It seems to be reasonable,x that a great and sudden depreciation in the value of property might so change the condition of an estate, as to excuse an administrator from liability for debts previously paid. Miller v. Rice, 1 Rand. 438. But can an administrator justify his return of insolvency on this ground, after having held the estate an unreasonable length of time? An administrator must be prompt. It does not appear how long this estate was in the course of administration before insolvency occurred. It may have become insolvent from the fault of the administrators. An administrator can give no preferences, and if he return an estate insolvent, after having paid debts, he must have a clear and undoubted excuse. Black v. Barton, 6 S. & M. 243. There seems, therefore, to be a great want of certainty in this rejoinder. This rejoinder may be true, and yet there may have been the grossest maladministration.

By the fourth breach it is alleged, that the defendants did not truly administer in this, — that they sold real estate, to the amount of $50,000, for the payment of debts, which sum 'they wholly failed to pay out in the course of administration. The rejoinder is, that before the money was received, the estate was reported insolvent. Suppose it to be so, did that excuse the adminstra-tors from failing to pay those entitled, whgn it was received ? The deduction from the fact pleaded would be, that, by reporting an estate insolvent, an administrator is excused from further payment.

The fifth breach is, in substance, the same as the fourth, and the rejoinder sets up the same fact; it is therefore liable to the same objection.

The sixth breach charges the defendants with maladministration, in wrongfully suffering judgments to be rendered against them, before the expiration of nine months; their rejoinder is a denial, in terms as certain as the breach', and may therefore be sufficient.

The seventh breach charges maladministration in this, — that defendants paid out the sum of $24,000, towards debts wrongfully contracted by them after Brown’s death, when the estate was insolvent, and not in the due course of administration, and left unpaid the judgment of plaintiffs. To this, it is answered, that the money was paid out on contracts rightfully made by them, in pursuance of the will. This answer does not make out a full justification. The creditors of an insolvent estate have equal claims, although there may be a will, and an administrator can make no contract which will defeat their claims. If the will authorized the making of contracts, the facts should have been pleaded, and it was for the law to determine whether they were rightfully or wrongfully made. The demurrers, therefore, to these several rejoinders, except the sixth, were improperly overruled.

The remaining question is, did the court err in rejecting the record of the plaintiffs’ judgment? The objections to the record are twofold; first, that the scire facias to revive against the defendants, was not executed as to one of them; and second, for a variance in the description of parties.

The suit was instituted against Brown, and after his death, a scire facias was issued, to revive against the defendants. The service on two of them was regular, but as to the other, the process was executed by leaving a copy at his place of business with one of his clerks, without stating that the defendant was from home.

Suppose this was insufficient service, what is the effect? As to those who were served, the judgment might have been reversed on error, but it was at most merely irregular, not void as to them. The judgment was rendered in May, 1838, and no steps were taken to reverse it. It cannot now be reversed; it must therefore stand as a judgment against the estate, and it was only introduced to prove the existence of a claim against the estate. It is not entirely clear, to my mind, that a service on two out of three administrators is insufficient as against the other. They all fill but one office; the act of one is the act of all, and they represent the estate. A judgment against them only binds the estate. 6 J. J. Marsh. 125. With partners it is different. A judgment is binding on them jointly and severally on the joint fund and their individual property. An intimation was thrown out on this question in Breckenridge's Adm’r v. Mellon’s Adm’r, 1 Howard, 273, but it was left rather in doubt. Be that as it may, it is now too late to object to a mere irregularity in a judgment, when it is introduced to prove the existence of a debt against an estate.

The variance complained of is, that the judgment was rendered against the defendants as administrators generally, whereas they are described in the proceedings in this action as administrators cum testamento annexe. This is certainly an immaterial variance, if it be a variance at all.

Judgment reversed, and cause remanded.  