
    Case 5 — PETITION ORDINARY
    Jan. 10.
    Fleming v. Jones, &c.
    APPEAL FROM BATH COMMON PLEAS COURT.
    1. A PERSONAL REPRESENTATIVE IS BOUND TO USE REASONABLE DILIGENCE in collecting debts due the estate, and is held to be responsible for debts lost by his negligence.
    2. A PERSONAL REPRESENTATIVE MAY REQUIRE A REFUNDING-BOND FROM A LEGATEE OR distributee before delivering to him his portion of the estate, but it is not imperative on the legatee or distributee to execute the bond unless required to do so by the personal representative.
    Section 471 of the Civil Code, which imperatively required the refunding-bond, has been modified by the General Statutes, chapter 89, article 1, section 8.
    
      But see if section 435 of the New Code does not reinstate the law as embraced in section 471 of the Old Code. See also section 471 of the New Code.
    NESBITT.& GUDGELL for appellant.
    1. Under the will the administrator was not bound to collect the assets of the estate further than was sufficient to pay testator’s debts, as the estate was all given to the widow during her life. The notes belonged to her, less the distributive share due to the obligors in the notes for which the administrator is sought to be made liable.
    2. The court below erred in not requiring the legatees to whom the money was adjudged to execute a refunding-bond before rendering judgment against appellant. (Sec. 8, art. 1, chap. 39, G. S., p. 442; Civil Code, sec. 471; Mountjoy v. Pearce, 4 Met. 97; 4 Bibb, 266; 3 J. J. Mar. 684; Neeley’s adm’r v. Neeley’s heirs, 1 Littell, 294; Carrol, &e. v. Connet, 2 J. J. Mar. 202; Munsell, adm’r v. Bartlett, 6 J. J. Mar. 20; Thompson, ex’r v. Saunders, 6 J. J. Mar. 99; Blackerby v. Holton, &c., 5 Dana, 523; sec. 8, art. 1, chap. 37, R. S., 1 Stant. 499; New Civil Code, sec. 435.)
    H. L. STONE FOR APPELLEES.
    The obligors in the note for which appellant was charged were solvent. This debt was lost because the administrator used no diligence to collect it, and therefore he was properly charged with its amount.
   JUDGE ELLIOTT

delivered the opinion oe the court.

It was the duty of the appellant, as administrator with the will annexed, to use the personal assets in the payment of the debts of decedent; and after the payment of all claims against Tacket’s estate it was his duty to make his settlement of the estate with the county court, and pay any balance in his hands to Mrs. Tacket, the widow and life-tenant of the testator’s estate. He was fully authorized, by the powers vested in him as administrator with the will annexed, to collect all the debts owing to testator’s estate, and it was his duty to have done so; and as the Jacksons appear to have been good, and executions to have been collected off of them as late as 1873, some three years after appellant’s appointment as administrator of Tacket’s estate, it seems to us that he rendered himself responsible for the amount of the Jackson note, which appears to have been lost by his negligence, and especially so as the life-tenant demanded the notes of him and he refused to surrender them to her.

But it is contended that it was error to render judgment against appellant till the appellees had executed and tendered a refunding-bond to the appellant, to secure him against loss by reason of any debt which might afterward come against him as the representative of Tacket’s estate.

By the provisions of section 471 such a bond had to be given before the rendition of any judgment against the administrator ; but by chapter 39, article 1, section 8, of the General Statutes, it is provided that before an executor or administrator with the will annexed shall pay or deliver over a legacy, or distribute the part not devised, he may require an obligation with good surety from the legatee or distributee to refund his due proportions of any debts or demands which may afterward appear against the testator and the costs attending the recovery of the same.”

It will therefore be seen that the executor or administrator may require a refunding-bond from the legatees or distributees of a deceased person before delivering to them their portion of the estate of such person, but it is not imperative on the legatees or distributees to execute the bond unless required so to do by the personal representative.

The 471st section of the Code, which required such a bond before a legatee or distributee could receive his portion of an estate, has been modified by the provision of the General Statutes supra; and as the record fails to show that appellant required a refunding-bond, it was not error to render judgment against him for the amount due appellees.

Wherefore the judgment is affirmed.  