#### SIMON NEWSOM vs. JOAB NEWSOM’S HEIRS.

Where an administrator suffers a debt, which is really due from the estate, to be recovered from him by a person not properly entitled to it, though the judgment is unreversed, he will be protected in paying it out of the personal estate, yet it forms no ground for a claim of the administrator against the heirs, as for money disbursed by him for the benefit of the estate beyond the personal assets he had received.

An administrator can have no claim against the heirs for his commissions, though he may have expended all the personal estate in the payment of debts.

Cause removed from the Court of Equity of Wayne County, at the Fall Term, 1844. The case was as follows:

The complainant charges,- that as administrator of Joab Newsom, he paid and discharged debts of his intestate, to an amount great!y exceeding the assetts, .which came to his hands, and that he was induced to make these advances from a full belief, that the assetts would reimburse him. In this expectation he was disappointed, from the insolvency of some of the debtors, and other causes. He claims to be in advance1 for the estate to the amount of $536 91, as reported by commissioners appointed to audit and settle his accounts. The1 deficiency in the personal assetts, he also attributes to unexpected recoveries made against him-,- as administrator of his-intestate. His prayer is, to be indemnified out of the real estate descended to the heirs of Joab Newsom, the defendants;

The answers, not denying the payments made by the plaintiff, allege he made the over-payments, officiously, and without any necessity, and that the deficiency in the assetts was occasioned by the plaintiff’s .paying the interest of a large debt obtained by one Kilpatrick, as the administrator of John King,, against the estate of Joab Newsom, and that the said Kilpatrick had proposed to the plaintiff, if he would pay the principal, he would remit the interest, which considerably exceeded the principal. This proposition was rejected by the plaintiff,- *412and the whole debt recovered of him. Replication was takto ^ answersJ and> ^® canse being set for hearing, the accounts, by a decree of the court, were referred to the master^ wjj0 ¿¡u]y macje ¡.^g report. ln making his report the master took for the basis thereof, the account of the auditors returned to the County Court of Wayne, from which it appeared the estate was indebted to the plaintiff the sum of $536 91, which was reduced by money subsequently received by the plaintiff, to the sum of $306 24.

To this report the defendants excepted, because, the master, in making his statement, had allowed the plaintiff, as a disbursement, the sum of $2,206 76, which was the interest on a debt paid to Harry Kirkpatrick, as the administrator of John King.

Mordecai, Etasied and Washington for the plaintiff.

J. H. Bryan for the defendant.

Nash, J.

In looking over the exhibits filed in the case, we find that one John King died in the year 1813, having made and published in writing his last will and testament, which was duly proved, and the intestate, Joab Newsom, qualified as executor thereof, and took upon himself its due execution. By his will, John King gave several bequests, and among them the following : “I also give all the rest of my property, that is not given away, to be sold and equally divided between the heirs of my daughter, Martha Daniel, lawfully begotten of her body. My will is, that my executor keep the money arising from what I give my daughter, Martha Daniel’s children, until they arrive at the age of twenty-one.” Upon the death of Joab Newsom intestate, Harry Kilpatrick, was, by the proper tribunal, appointed administrator de bonis 7ion, with the will annexed, upon the estate of John King, and filed his petition in the County Court of Wayne, against the present plaintiff, as administrator of Joab Newsom, to recover the legacy to the children of Martha Daniel, and obtained a decree therefor, under which decree the money was paid to Kilpatrick, We think this decree was entirely erroneous. It *413is evident, that Harry Kilpatrick, administrator de bonis non of John King, was not the proper person to take the legacy into his hands. It was in the possession of the plaintiff, as a trustee for the children of Mrs. Daniel.' They were no parties to the suit. The County Court gave the petitioner a decree for the sum of $3,471 17, of which the sum of 2,206 76 was núteres!', and for which the defendants except.'

Erroneous, however, as this decree is, until reversed, it is binding upon all, who were parties to it. It is not, however, binding upon the children of Mrs. Daniel, the legatees under John King’s will, and'the payment of it to the administrator de bonis non, Kilpatrick, is no discharge to the real estate of Jo-ab Newsom. And those, who were bound to make it good, are still so bound. And, of course, the plaintiff has no right to come into this court, and ask that the lands should be subjected to make good a deficiency so created. There is, however, another fatal defect in the plaintiff’s claim. It is this. The master reports, as due to the plaintiff, the sum of $360 24. Upon looking into the accounts audited in the County Court, and taken by the master as the basis of his, we find that the auditors allowed the plaintiff commissions to the amount of $366 04, a sum exceeding that found due to hirn, by six doldollars. However just and proper the commissions may be, as a charge against the personal estate, it certainly can constitute no claim on the part of the plaintiff, as a charge upon the real estate.

Upon both grounds, then, the plaintiff is debarred of the relief he seeks. For, although the payment under the decree, referred to, will protect him against any one claiming the personal estate of Joab Newsom, it is different when he comes and claims relief against the real estate.

The exception of the defendant is allowed, and the bill dismissed with costs.

Per Curiam, Bill dismissed with costs.'