#### The State on the relation of W. W. LATTA, Adm’r. de bonis non cum tes., v. CHARLES E. RUSS, Adm’r., et al.

Wliure an administrator with a will annexed died, having in his hands money arising from the sale of land, decreed to be sold for the payment of debts, being a surplus over and above the sums required to pay such debts, which money belonged, by law, to persons, to whom the land was devised, it was Held that the administrator de bonis non ctim tes. an. of the original intestate, was the proper person to bring suit for such money, and not the devisees.

Whore an administrator petitioned for the sale of his intestate’s land, setting forth the number and amount of the debts existing against the estate, and a decree passed for such sale, in a suit by an administrator de bonis non, to recover a surplus over and above the debts, such decree was Held not to be conclusive as to such debts, although the persons, to whom the land was devised, were made parties.

Moneys paid by an administrator for the support of his intestate’s minor children, are not proper vouchers for him in the settlement of such estate.

This was an action of debt, on an administration bond, tried before Dick, J., at a Special Term, June, 1860, of Orange Superior Court.

Richard Crabtree made his will, by which he devised - certain lands to Thomas J.-Latta and wife, William Hopkins and wife, William Crabtree, Moses Crabtree, Clement Crabtree,. John Crabtree, Richard Crabtree, Arthur Crabtree, Kemp Crabtree and Lucy Ann Crabtree, the last six of whom are minors. He devised a certain other tract of land to be sold for the payment of debts, and that the rents, issues and profits of the other land should be applied to the support of his minor children. The executors, named in the will, having'renounced the office, his widow, Parthenia Crabtree, was appointed administratrix, with the will annexed, and gave the bond, on which this suit is brought. The administratrix filed petitions in the County Court of Orange, to which the devisees were made parties, setting forth that she had exhausted all the personal estate, and that there remained a certain amount of debts (stating them) unpaid, and prayed that the lands de-vis^' ed to said parties should be sold for the purpose of satisfying *112these debts. Decrees were entered accordingly, and the debts all paid ont of the proceeds of the land. Mrs. Crabtree having died, this suit was brought by the plaintiff, who was appointed administrator de bonis non, with the will annexed, of Richard Crabtree, and her administrator was made a party defendant with the other obligors, her sureties. It appears by the report of Mr. Laws, to whom it was referred to state an account of Mrs. Crabtree’s administration of her husband’s, estate, that taking the amount of debts to be as made out by the vouchers, and rejecting charges made by her for supporting the minor children, there remained in her hands $882,22, which the commissioner thinks is the true balance. But he says, in an alternative view of the subject, that if these-charges be allowed against the children, and the debts against the estate be taken to be as stated in the decrees for sale of laud, that then, there will be in the hands of the ad- ' ministratrix, unadministered, only $252,45. The defendant’s counsel insisted:

1st. That as the act of Assembly, gives the surplus arising from the sale of land, made assets, to the persons who would have taken the land'itself, had it not been sold, the. devisees themselves should' have brought the suit as relators,, and not the administrator dedonis non of Richard Crabtree.

■2nd. That the decrees by which the land was sold, and to which the devisees were parties, concluded them as to the amount of the debts due and owing by Mr. Crabtreeis estate.

3rd. Also that the charges, for supporting the miaor children were correct, and that, therefore, only the smaller sum, above mentioned, could be recovered.

By the consent of the parties, a pro forma vei’dict was entered for the smaller sum-, subject to be set aside and a verdict and judgment entered for the larger sum, according as his Honor should be of opinion on the points of law, above stated, in the 2nd and 3rd positions taken by the defendants.

On consideration of the questions reserved, his Honor being of opinion with the defendants, gave judgment for the smaller sum, and the plaintiffs appealed.

*113Graham, fertile plaintiffs.

Norwood and Phillips, for the defendants*.

Pearson, C. J.

The objection made in this Court, that' the action cannot be maintained by the administrator de bomsnon with the will annexed of Richard Crabtree, and should have-been brought on the relation of the devisees, is-not tenable.

In respect to the personal estate,- it. is settled,..that if an administrator die before he has completed the settlement of the-estate, by paying debts and making, distribution, an administrator de bonis non must be appointed for the purpose of completing the settlement, for the reason, that there-is no privity between, the distributees of the intestate and the personal'representative of the deceased administrator, and, .consequently;., both of the deceased persons must be represented';-Duke v. Ferribee, 7 Jones, 10; Taylor v. Brooks, 4 Dev. and Bat. 139 ; State v. Johnson, 8 Ire. 381; State v. Britton, 11 Ire. 110.

The statute which authorises- tile-sale-of real' estate -on tile-petition of an executor or. administrator-for the.- payment of’ debts, makes the proceeds-of sale. assets-for tbe.- payment of' debts,.and directs that the-excess-shall.be paid.by the-execm tor or administrator to such, persons- as-would, be-entitled to the-land bad it not been-sold; Rev..Code, ch. 46, sec. 50, 51. Thus putting the excess of the sale - of real estate on the same footing, in respect to the devisees and heirs, and imposing on executors and administrators-the same duties in regard thereto, as existed,in relation to.the rights, of legatees and distributees to the excess of the personal,estate,-.and. the duties.-of executors and, administrators-in regard thereto».

When, therefore, an-administrator dies before-lie*has-completed the settlement of the- assets, derived, from real estate, by paying debts and payin-gqover the- excess to the devisees or heirs-at-law, this unfinished,duty cannot be performed by bis administrator, for there-is no privity between him and the devisees and lieirs-.at-law, and it is, consequently, necessary that both of tbe deceased persons should be represented, so, *114tbat the representative of the administrator should pay over tbe fund to the representative of the first intestate, whose duty it is made, to complete the administration by paying off all the debts, and paying over the excess to such persons as would be entitled to the laud, had it not been sold. In other words, between the administrator d^e bonis non of the first intestate ,-and his creditors and devisees, or heirs, there is a privity ; whereas, there is no privity between the latter and the administrator of the first administrator. So, the action is properly brought on the relation of the representative of the testator, Richard Crabtree, and it is his duty to receive the fund and •complete the settlement of the estate.

We do not concur with his Honor, in the view taken by him of the question reserved, in respect to the effect of the decree, giving the administratrix license to sell the land. That decree was an adjudication that it was necessary to sell, and is conclusive in favor of the title acquired by the purchaser, but it is not conclusive of the question of debt or no debt, as against, or in favor of creditors, or as against, or in favor of the heirs. It is certainly not so in respect to creditors, because they are not parties to the proceeding, and is, consequently, not so in respect to the heirs or devisees; for an estoppel must be mutual. To make it so, would be going beyond the necessity of the ease, the object being simply to establish prima facie, that the personal estate is not sufficient to pay the debts, as a foundation, for the action of the court, in granting a license to sell the real estate, the proceeds of which are made assets, to be accounted for in the settlement of the estate, when the executor or administrator must, as a matter of course, discharge himself, by the production of proper vouchers.

We think it clear, therefore, that in making the settlement in this case, it was the duty of the Court to go behind the decree allowing the administratrix license to sell; and it is likewise clear, that her charges, for the support of the minor children, of the testator, were not proper vouchers. They were not debts of the testator, and are directed to be paid out of the rents, issues, and profits of the land. The fund raised by such *115rents, issues and profits, up to the time of the sale, are not charges against the administratrix, and "neither of these matters should have been brought into the settlement, either as items of charge or discharge.

Whether the minor children will not be entitled to the interest of the fund, received by the plaintiff as excess of the proceeds of the sale of the land, the profits of which are ■devoted by the will for their support, is a question that will arise when he is required to make distribution, but is not now presented.

The judgment of the Court below will be reversed, and judgment entered for the sum of $882.22, with interest, according to the case agreed.

Per Curiam,

Judgment reversed.