
    John L. Crawford v. Thomas O. Elliott.
    Charleston,
    March, 1829.
    
    The ordinary cannot restrain or control an administrator’s right to the properly of his intestate. His only remedy, if the security to the administration bond becomes doubtful, is to revoke the administration.
    An agreement by an administrator with the ordinary, to leave the management of the estate in the hands of a third person, is no bar to an action by the administrator against such person, for moneys of the estate in his hands, although the ordinary has forbid his paying them over to the administrator.
    Tried before the Recorder in the City Court of Charleston, at July Term, 1828.
    Summary process for money had and received by the defendant to the use of the plaintiff, as administrator of the estate of Martha Mackey, deceased. The defendant relied upon a written notice from the ordinary, not to pay over the money in question to the plaintiff: which notice was given under the following circumstances. One of the sureties to the plaintiff’s administration boud had applied to the ordinary to be relieved from his responsibility ; and the plaintiff finding some difficulty , . . ,. , . , an procuring a substitute, the ordinary agreed to continue the administration, with the remaining surety, provided the plaintiff would leave the entire management of the estate in the hands of the present defendant. To this arrangement all parties agreed ;. and the plaintiff, in conformity thereto, executed a letter of attorney to the defendant, who sold certain bank shares of the intestate, and after paying off the debts, stated his account, and was about paying the balance, being the Sum now in dispute, to the plaintiff, when he received the notice from the ordinary before mentioned. In this notice the ordinary stated’that the remaining surety had become insolvent, and had left the State ; and that the administrator had been required to show cause why his administration should not be revoked: and the defendant was required to hold the money in his hands subject to the order of the ordinary, and not to pay it over to the plaintiff.
    The Recorder was of opinion that the defendant ought to have gone one step farther, and shown that the administration was actually revoked. For until that was done, the ordinary could neither restrain nor control the administrator’s title to whatever formed part of the estate of his intestate. Decree for plaintiff.
    The defendant now moved to reverse the decree of the Recorder, on the grounds: 1. That after citation to show cause why the administration should not be revoked, the ordinary might control or suspend the authority which he had granted to the administrator, at least until cause was shown. 2. That plaintiff could not maintain this action in opposition to his own agreement.
    Elliott, for the motion.
    Finley, contra.
    
   Nott, J.

delivered the opinion of the Court.

I concur in opinion with the Recorder in this case. The administrator does not derive his authority from the ordinary, as has been insisted by the counsel for the defedant. His authority to act as administrator is derived from the ordinary, because he has the appointment to the office. But the powers which the office confers are derived from the law, and not through letters of instruction from the ordinary. With regard to the contract was alleged was made by the plaintiff with the or-binary, it was nothing more than appointing the defendant his agent: an appointment which he might, at any time, revoke. Suppose the defendant had set about administering the estate in his own way, and in a manner which the administrator did not approve. Would he be required to stand by and see it wasted, without being permitted to interpose his authority to arrest the evil 1 It is true the ordinary has the power to revoke the administration, and thereby deprive the administrator of his authority. And if the danger is so great as to warrant his interference, why has he not done it 1 and why does he not do it now ? The cause has gone through two successive' Courts, and the only de-fence is, that the ordinary intends, or threatens, to revoke the letters of administration. As well mightaperson attemptto maintain an action as administrator, under the pretence that the ordinary intends to give him the appointment. The defendant might, upon the request of the ordinary, from motives of prudence, have .declined paying over the money. Cases may occur, and perhaps this is one, in which it would be proper to do so. But then the party withholding it must do it at his own risk. If the administration had been revoked, the defendant would have been safe. But under existing circumstances, he must pay the money over. The administration of the estate-cannot stand still, nor the powers of the administrator be suspended, because the ordinary does not choose to act.

The motion must therefore be refused.  