
    J. B. Thompson, Administrator de bonis non of Hance M’Culloch, vs. James T. Buckner.
    Bill by administrator de bonis non against defendant to account as former administrator, his administration having been revoked. There were but two distributees, of whom defendant’s wife was one; he had paid the debts and obtained an assignment from the other distributee. Meld, that the validity of the deed of assignment could not be impeached by the plaintiff. If obtained by fraud, none but the distributee or his representatives could impeach it, and it was a fraud on his creditors, they only could complain. And for the same reason the will of the distributee disposing of his interest in the estate, was rejected. [*500]
    And a decree in favor of defendant’s wife for alimony settling her portion of her father’s estate to her separate use. is irrevelant and inadmissible. The administrator de bonis non cannot call defendant to account for her benefit. She might enforce her own decree. [*50l]
    Nor can the administrator de bonis non in such case sustain the bill on account of judgments remaining of record unsatisfied ; especially where from lapse of time they may be presumed to be satisfied, and where the judgment creditors are not parties claiming payment. To require defendant to account on that ground, they should come in and swear that their judgments are unsatisfied, and it should appear that the defendant had notice of their demands within the year; after that, without notice, he would not be liable as administrator, and the creditors would be left to their remedy against the distributees. [*501]
    Administration ought in no case to be granted, but to kindred or creditors, or on their application, and where there are neither, the Ordinary is only authorized to grant administration ad colligenda bona. [*503]
    Heard at Coosawhatchie, February Term, 1836, before Chancellor Harper, who delivered the following decree :—
    On the 2d of August, 1816, administration was granted to the defendant, James T. Buckner, of the estate of Hance M’Culloch, then lately deceased, whose estate was appraised at more than $12,000. He continued in the administration until the — of July, 1821, when his administration was revoked on the application of his sureties. In 1830, administration de bonis non of Hance M’Culloch’s estate, was committed to David C. Campbell, who renounced in the same year; and in December, 1833, administration de bonis non was committed to the plaintiff. The bill is for an account* of the estate of Hance M’Culloch, in the -* hands of the defendant.
    Defendant, by his answer, admits the facts stated with regard to the grant of the several administrations, and the revocation of his own. He states, however, that he paid off all the debts of the intestate, and accounted before the Ordinary. He states that Hance M’Culloch left only two children, or distributees, to wit: a son named Thomas B. M’Culloch, and a daughter named Elizabeth, who was the defendant’s wife; that on the 4th of March, 1816, the said Thomas B. M’Culloch, by deed, assigned to the defendant all his interest in his father’s estate. Defendant claims that having paid off all the debts, and being himself entitled to the whole estate, in right of his wife, and under Thomas B. M’Culloch, deceased, he is not liable to account. If the case made by the answer were sustained, there could be no doubt that he would be entitled to a decree. The Court would not do such a thing as to compel a defendant to account for an estate which he would be forthwith entitled to receive back.
    The execution of the deed of Thomas B. M’Culloeh, was admitted, but evidence was offered to show it to be fraudulent. This testimony was objected to on the part of defendant, and the objection sustained by the Court. The transaction was a final administration of the estate, so far as Thomas B. M’Culloch was concerned. If it was a fraud on his creditors, the deed might still be good, as between the parties, and none but his creditors could impeach it. If it were obtained by a fraud practised on Thomas B. M’Culloch himself, none but himself, or his legal representative, could call it in question. He is understood to be dead; but suppose he were living and did not think proper to impugn it, could the administrator de bonis non avoid it on his behalf without his concurrence 1 It can make no difference that he is dead; his legal representative stands in his stead, and is alone competent to litigate the validity of the deed. For the same reason, the will of Thomas B. M’Culloch, which was said to dispose of this property, was rejected when offered. The executor of that will, if an executor were appointed, or if not, an administrator cum, testamento annexo, is the only proper person to sue. Evidence was also offered of proceedings on a bill in equity by the wife of the defendant against him for alimony, and a decree that her portion *5011 ker father’s* estate, should be settled upon her, to her sepaJ rate use. This also was objected to, and the objection sustained. The object of the present suit was stated to be for her benefit, and that she might be satisfied with her decree. But this is plainly unnecessary and contrary to principle. If any other distributee had obtained a decree, could the administrator de bonis non call the former ad ministrator to account for the benefit of that distributee ? What difference does it make that the distributee was the administrator’s wife ? If the decree was that defendant should settle the estate on her, it is implied that he shall account first. What forbids her to enforce that decree ? Or if there be any defect in the directions of the decree, they may be supplied by proceedings to have it carried into effect. Then evidence was offered to show debts existing against the estate of Hance M’Culloch, on account of which the administrator de bonis non is supposed to sue. This consisted of certificates from the clerk’s office of Colleton and Beaufort Districts, of judgments against Hance M’Culloch himself, and against the defendant as his administrator, standing apparently unsatisfied on the record. It was objected that these ought to be regarded ás satisfied from lapse of time, and so I should think. The latest judgment against Hance M’Culloch, was near twenty-two years before the filing of the bill, and the latest against the defendant as administrator, near nineteen years, and these are circumstances to corroborate the presumption. There are various reasons why the bill could not be sustained on the score of the judgments, but a conclusive one is, that the judgment creditors are not before the Court, nor claiming anything upon them. If they were, they would be required to make affidavits that their judgments were unsatisfied before they would be received. The plaintiff is a trustee on their behalf. In the case of Stoney v. Shultz, decided by the Court of Appeals at its last sitting at Columbia, the assignee of an insolvent debtor, when creditors had been advertised for, objected to the distribution of the fund among the creditors who were before the Court, on the ground of such judgments standing apparently unsatisfied on the record. ■ The Court held, that though a trustee for all creditors, it was not his duty to go in search of creditors, and that they could take notice of no creditors, but those who had presented their demands duly verified by affidavit. By parity of reason, if the estate were in the hands of the plaintiff, and distributees were suing him, he could not claim to ^retain a fund to meet those r^Kfto judgments; he-could not do so at any time after the expiration of *- the year and day. Creditors who had not within that time rendered their demands, would be left to their remedies of pursuing the estate in the hands of the distributees. Shall he be permitted to recover against defendant, that he may hold the fund, upon a surmise that these claims may be one day brought forward and established ?
    It is ordered and decreed that the bill be .dismissed with costs.
    The plaintiff appealed on the following grounds :—
    1. Because the administrator of Hance M’Culloch did not finish and complete his duty as such — inasmuch as he did not pay the debts and cause distribution to be made, but held the estate unadministered until the administration was revoked, and thereby became liable to account to the administrator de bonis non.
    
    
      2. Because the decree of the Court of Equity prevented the attaching of the marital rights, and until a final account, the possession by the administrator of M’Culloch, was not sufficient to transfer his wife’s share.
    3. Because the mere allegation of a conveyance from the other distributee, was not a sufficient accounting for his share.
    4. Because the Chancellor, instead of dismissing the bill, should, on his own principles, have retained the bill and directed that the legal representative of Thomas B. M’Culloch and the judgment creditors of Hance M’Culloch, be made parties.
    5. Because there was no proof of any account before the Ordinary; on the contrary, his accounts show a large inventory and only some partial payments, and no final account was proved or pretended.
    N. B. The decree is mistaken in the statement that the execution of the deed of Thomas B. M’Culloch was admitted. It was admitted that such a deed has been set up and alleged, and evidence was to be introduced to show it void.
    
      Hunt, for the appellant.
    
      Bailey, contra.
   Chancellor Harper,

delivered the opinion of the Court.

The mistake which is supposed to have occurred with respect to the admission of the fact of the execution of Thomas B. M’Culloch’s deed, if it be a mistake, is one which cannot be corrected now. My notes of *^031 ev^ence were sent with the decree, and *are not now in my J possession. The notes were before me, however, when the decree was drawn, and I am satisfied that I must have so taken it down, and so understood it at the time. It is singular that evidence should have been offered to show the deed to be fraudulent before its execution was established.

With respect to the debts of the estate of Hance M’Culloch, which are said to remain unpaid, I may remark, in addition to what is said in the decree, that the existence of such debts is not alleged by the bill, and consequently the defendant could not have been prepared to disprove them. If, after the expiration of the year, during which he had received no notice of the debts, the administrator had paid over the estate to the distributees, he might plead that he had fully administered, as against creditors, or an administrator de bonis non. Creditors might perhaps pursue the estate in the hands of the distrubtees; but an administrator de bonis non, would be required to prove, not only that debts existed, but that the administrator had notice of them within the year, before he could require an account. In this case, that has been done which, according to the view I have taken, is equivalent to a full administration. If the creditors themselves might pursue the estate in the hands of the defendant or his wife, yet the administrator de bonis non, even if he has established the existence of the debts, has certainly not shown that the defendant had notice of them within the year.

I think that Ordinaries ought in no case to grant administration, unless to the kindred or creditors, or upon the application of the kindred or creditors. The statutes 31 E. 3, c. 11, and 21 H. 8, c. 5, only provides for the granting of' administration to the kindred, &c., according to their propinquity. See Toll. Ex. 82, 83. Administration is also committed to creditors; but when there are neither kindred nor creditors, the Ordinary is only authorized to grant administration ad colligenda bona — for the sole purpose of collecting and preserving the goods.— When kindred applies, the ordinary must have evidence that they are kindred, entitled to the administration. And when creditors apply, they ought to verify the existence of their demands, not only by the production of their evidence of debt, but by their own oaths. In this case, it is plain the administration was not granted on the application of creditors. It is probable that it was granted on the application of the defendatit’s wife. But as to her, as I have said, even if she were otherwise *entitled to it, the estate has been fully administered by the decree r#(. n. in her favor.

If the decree in favor of the wife is to have no validity or effect whatever, then it cannot stand in the way of the husband’s marital rights attaching. If it is to have any validity or effect — if it be an authoritative determination of her right to the estate derived from her father, then it is certain that it may be enforced and carried into execution, by a proper proceeding on her part. Directions may be supplied, if they are deficient, and au account had if an account be needed. But to decree an an account and payment of the estate to the present plaintiff, would be, in effect, to decree to him that which has already been decreed to her.

With respect to the suggestion in relation to making additional parties, it may be observed, that if the plaintiff had any rights, to the decision of which those parties were necessary, such a course would be proper. But he has no rights, nor any standing in Court, and if such an order were made, it would not be to amend the bill, but to make a new case, to which he would be an improper and unnecessary party.

The decree is affirmed.

Johnston, Chancellor. I do not concur.  