THE STATE TO THE USE OF CHARLES BALDWIN vs. ASA JOHNSTON & AL.
Where an admlnistratrator dies without having finally administered the estate of his intestate, an action will not lie by one of the next of kin for his share of the estate against Ms administrator, but must be brought by the administrator de bonis non of the original intestate.
The case of Taylor v. Brooks, 4 Dev. &¡ Bat. 143, cited and approved.
Appeal from the Superior' Court of Law of Washington County, at the Spring Term, 1848, his Honor Judge Settle presiding.
James Baldwin died in the year-intestate, without issue, leaving a widow and one brother, the relator, who were entitled to his personal property. Letters of administraton were duly granted to James Bennett, who entered into bond, with the defendants, as his sureties. The personal estate of Baldwin was large.and the administrator possessed himself of it, and after paying the debts of his intestate, and the widow her third, had. in his hands a considerable sum, unadministered. Bennett died, and this action is brought on the administration bond, by the brother, the relator, to recover the money so remaining in the hands of the administrator.
His Honor was of opinion that the relator could not maintain the action, but that it ought to have been brought by the administrator de bonis non. In submission to this opinion, the plaintiff took a non-suit, and a motion for a new trial being refused, appealed to this Court.
Heath, for the plaintiff.
Iredell, for the defendants.
*382Nash, J.
We see no reason to doubt the correctness of the judgment appealed from. Upon the estate of every intestate there must be an administration, in order to its due and proper settlement. The administrator is the personal representative of the deceased, and upon him devolves the duty and reponsibility of collecting the as-setts, and paying the debts and making distribution. He alone is recognised as legally entitled to the assets, and to him must the creditors and next of kin look. If he dies before these ends are attained, an administrator de bonis non must be appointed, and to him the like rights, duties, and responsibilities attach; and so on, as often as the representative dies without closing his administration, and the action at law, to collect the unadministered assets, must be brought in the name of the administrator de boms non, and not in that of the next of kin, Taylor v. Brooks 4 Dev. & Bat. 143.
We agree with his Honor, that the relator cannot main» tain this action.
Per Curiam. Judgment affirmed.