#### JOSEPH FANSHAW, BY GUARDIAN, &c., vs. JOHN FANSHAW, ADM’R. OF DAVIS FANSHAM, et al.

In a suit by one of the next of kin against the administrator and his sureties on his administration bond, for a distributive share of the sales of slaves sold by the adminstrator, not in his capacity as such, but as a commissioner appointed by Court, under a petition for partition, to which the plaintiff was a party : — Field, that the plaintiff is thereby estopped from saying that the administrator, after the sale, held the proceeds as administrator.

Kor can the defendants be held liable, by reason of the administrator’s return of his account of sales, wherein he states the same were made by him as administrator — inasmuch as his acts will be referred to his rightful authority, (as commissioner.)

jNor will the fact that the plaintiff was a lunatic at the time the petition for partition was filed, protect him from the estoppel.

Held, also, that though the administrator had a right to keep the slaves, and sell or hire them if necessary, to pay the debts, yet he was not bound to keep them, there being no debts; and his joining in the petition for partition, with the others, next of kin, was in effect a delivery of the property over to them, and a discharge of his liability therefor.

This was an action of debt upon the bond given by the defendant, John Fanshaw, and his sureties, upon taking out letters of administration on the estate of Davis Fanshaw, deceased. The breach assigned was the nonpayment to the guardian of the plaintiff, of the amount due him from die administrator, as one of *167the next of kin of the said Davis Fanshaw, arising from the sale of certain slaves. Plea — conditions performed and not broken.

Upon the trial the facts were, that Davis Fanshaw died in the County of Currituck, some time before the November term, 1849, of the County Court of that county ; and at that term the defendant, John Fanshaw, administered upon his estate, and gave the bond on which the suit was brought; that the said Davis left six persons as his next of kin, among whom were the plaintiff, Joseph, and the defendant, John Fanshaw. At the same term of the Court, a petition was filed bjr the next of kin, including the said Joseph and John, setting forth that, by the death of the said Davis, certain slaves had come to them as tenants in common; that an equal partition could not be made without a sale; and praying that a commissioner might be appointed to sell said slaves, and make report to the ensuing term. . The prayer was granted, and by an order of the Court the defendant, John Fanshaw, was appointed the commissioner to sell the said slaves at the late dwelling house of the said Davis, upon a credit of six months, and malee report. At the ensuing February and May terms no report was made, but at August term the entry on the docket was, “ Report made and confirmed.” At the same November term, 1849, a petition wats preferred by Israel Fanshaw, representing to the Court, that the plaintiff, Joseph Fanshaw, was an idiot, and incapable of managing his estate; and praying that such proceedings might be had, that the said Joseph should be declared an idiot, and that a guardian should be appointed for him. The prayer was granted, and a writ issued to the sheriff to summon a jury, which was done; and tire jury, on the 21st December, 1849, found that ■“ tire said Joseph is not an idiot from birth, and is still not of sound mind, and wholly incapable of managing his estate,” &c. The verdict was returned to the ensuing February Term, and confirmed; whereupon a guardian was appointed for the said Joseph.

On the 21st day of December, 1849, the defendant, John Fan-shaw, as administrator of the said Davis, sold all of his perishable property, and then sold the said slaves and returned the account of sales to the Court, in which he kept the sale of the slaves distinct from the other, but with the following caption: — u An account of sales of negroes belonging to the estate of Davis Fan-*168ghaw, deceased, with interest from date — sold this 21st day of December, 1849, by John Fanshaw, Administrator;” and his name was signed at the foot of the account as administrator.

The defendants contended that Joseph Fanshaw being a party to the petition for the sale of the slaves in order to make partition of them, was estopped to say that they were, at any time after that, held by the defendant John as administrator; or that he and his sureties were liable for them on his bond. It was further objected that the finding of the jury of inquisition was contradictory and of no effect.

His Honor was of opinion against the defendants upon the points made, and under his charge the jury found a verdict for the plaintiff, upon which judgment having been rendered, the defendants appealed.

Heath and Jordan, for the defendants.

W. N. H. Smith, contra.

Battle, J.,

after stating the case as above, proceeded as follows: The only ground of defence taken by the counsel for the defendants in the Court below and in this Court is, that the relat- or was estopped by the petition for partition to which he was a party, from saying that the defendant John Fanshaw ever held the slaves afterwards as administrator. That position is fully sustained by the case of Armfield v. Moore, decided at this term. The allegation that the relator was a lunatic, and therefore not estopped, can make no difference; because the judgment, until reversed, concludes that fact as well as every other. There is another ground also upon which we think the defendants are clearly not liable. The administrator clearly had a light to take the slaves in order to raise the money, either by the hire or sale of them, if necessary to pay debts. But if there were no debts, or if debts existed and the money and the proceeds of the sales of the perishable property were sufficient to pay them, tlie.administrator was not bound to take the slaves and keep them for two years, but might deliver them over immediately to the next of kin. So in effect we think he did, when he joined as one of the next of kin in the petition for the sale of the slaves, in order that partition *169might be made of them. He was appointed by the Court a commissioner to sell them, and to sell them at a particular place, and upon a certain credit, and to make a report thereof to the Court. He did sell at the place and upon the terms specified in the order, and the record shows that at August Term, 1850, he made a report which was confirmed by the Court. So far he appears to have acted under the authority of the Court as a commissioner to malee a'sale of the slaves; and as such he and his sureties were certai^y not liable upon his administration bond for his default. But with his account of sales of the perishable property of his intestate, he returned an account of the sales of the slaves as having been made by him as administrator. Are he and his sureties concluded by that return? We think not. Yarbrough v. Harris, 3 Dev. Rep. 40. As administrator he had no rightful authority to sell the slaves until he had obtained an order of-the County Court for that purpose — 1 Rev. Stat. ch. 46 sec. 11; and it is not pretended that he ever did obtain such an order. The act of the defendant, John Fanshaw, in making sale of the slaves must then be referred to his rightful authority; and his sureties cannot be made liable on his administration bond, merely because he made a mistake in returning his account of the sales of the slaves, as having been made by him as administrator.

The judgment must be reversed and a venire de novo awarded.

Pee. Cueiam. Judgment reversed.