#### THE STATE ON THE RELATION OF P. W. SPENCER vs. R. M. G. MOORE & AL.

It seems that the presumption of the death of an individual, arising from his ■ absence from his domicil for seven years, does not imply that he died at the end of the seven years, but that he died either then or at some other period during the seven years.

The next of kin cannot support an action on an administration bond for their distributive shares, because this implies that the estate has not been administered, and the action should be by an administrator de.bonis non.

The case of the State v. Johnson, 8 Ire. 381, 397, cited and approved.

Appeal from the Superior Court of Law of Hyde County, at the Spring Term 1850, his Honor Judge Bailey presiding.

Samuel Spencer died intestate in Hyde County, in May 1840, and in November following administration of his estate was granted to Thomas B. Gibbs, who entered in* to the usual bond, for $2500, with the defendants as his sureties. The intestate left no issue, and Gibbs married his aunt and claimed to be entitled in her right, as sole next of kin, to the personal estate. He sold the effects and got in the money, to the amount of $829 09, which he applied to his own use, and then he died insolvent, in April 1848. John Spencer,-a brother of the intestate Samuel, formerly resided also in Hyde County, and left it on the 1st May 1841, saying, he was going to some distant Western State, and he has not since been heard of; and in May, 1848, administration of the estate of the said John was granted to the relator, as upon a death and intestacy.; and in August 1848 this action was brought on the administration bond, alleging the breach to be in fail*161ing to pay the said sum to the relator, as the administra* tor of said John, the surviving brother and sole next of kin of the intestate Samuel. The pleas were conditions performed and no breach.

Upon those facts the Court was of opinion, that the plaintiff could not maintain the action, and ordered a non-suit ; and the relator appealed.

Shaw, for the plaintiff.

W. H. Haywood and Donnell, for the defendants.

Ruffin, C. J.

To constitute the relator’s intestate Samuel’s next of kin, it is necessary that John should have survived his brother: as to which point, the only evidence is, that, at the time of Samuel’s death, seven years had not elapsed from John’s departure from this State, though that period has now elapsed, and had, when administration was granted to the relator. It is thence inferred, that John Spencer is now dead ; but that he was not dead at his brother’s death in 1846. The rule, as to the presumption of death, is, that it arises from the absence of the person from his domicil without being heard of for seven years. But it seems rather to be the current of the authorities, that the presumption is only, that the person is then dead, namely, at the end of seven years ; but that the presumption does not extend to the death having occurred at the end or any other particular time within that period, and leaves it to be judged of, as a question of fact, according to the circumstances, which may tend to satisfy the mind, that it was at an earlier or later day. Doe v. Nepeau, 5 Barn. & Ad. 86. 1 Greenleaf Ev sec. 41. The authorities, however, are not uniform upon the point. Smith v. Knowlton, 11 New Hamp. Rep. 191. However the rule may be on that subject, it is not necessary that the Court should take the trouble of investigating, because, at all events, the relator, as the repre*162sentative of the next of kin, cannot have an action on the administration bond. By the very act of bringing the suit the relator affirms, that the first administrator had not administered the estate. Therefore, the right to call him to account and to put the bond in suit is vested in the administrator de bonis non, as the Court has already held during this term, in The State, on the relation of Williams v. Britton's adm'r., upon the authority of the previous case of The State v. Johnston, 8 Ire. 381, 397.

Per Curiam. Judgment affirmed.