The opinion of the court was delivered by
GibsoN, C. J.
That the administrator de bonis non derived an authority from the grant of administration to give an acquittance for this money, will hardly be pretended. He was entitled to the assets remaining in specie, whether in money or goods, and whether in the hands of the late administrator or outstanding. The bare receipt of assets is doubtless not the commencement of an administration of them; but for wasting or converting them, an administrator de bonis non has no title to sue at law or in equity, the remedy being immediate by the creditors or parties ultimately entitled. Coleman v. McMurdo, 5 Rand., 51. And the same law seems to have been held in Allen v. Irwin, 1 Serg. & Rawle, 544. But the principle has technical reason, as well as authority, to support it. The Ordinary in England, or the Register here, has no jurisdiction of any thing that was not a part of the decedent’s personal estate at his death; nor power to commit the administration of any thing else to his officer. An outstanding debt may, with strict propriety, be said to remain in specie, the chose in action of the decedent, though suit were brought to recover it by the first administrator, that being but a means to procure the receipt of it, which does not confound it with the administrator’s own property; and for this reason an administrator was entitled by the common law toa new action, instead of an execution of the first administrator’s judgment, since given him by statute, as he still is to the proceeds of his execution when brought into court. But it never has been .held, here or elsewhere, that a bond taken by an executor or administrator for the decedent’s debts, does not discharge the old duty and create a new one. The instances in Roll’s Abr. 602; 6 Mod. 91, and 10 Mod. 315, are authorities directly in point. An action can be maintained on it only by the obligee; and that no judge has ven-[486]*486'iured, iii these days of juridical reform, to say that even he can sue on it in a representative character, is sufficient in all reason to prove that it creates but a personal duty.
The commission of an administrator de bonis non, extends but to the residue of the goods committed to the first administrator by the original grant. What these were is perceptible at a glance, in the bond required by the act of 1794, the condition of which is, that the administrator shall “administer according to law, the goods, chattels and credits of the deceased, at the time of his death.” These are the subjects of an administration proper, and precisely of that which is granted by the Register here, in the same way that it is granted by the Ordinary in England, where an administrator can have no business, with the real assets, actual or contingent; and where the bond required by the 22d and 33d Car., 2 c. 10, is nearly word for word the same as that required by our act of assembly. The business of an administration proper, then, relates to but what was the personal estate of the deceased at his death; and to that only does the security given to the Register extend. For this "reason it is that an administrator who sells real estate, gives additional security; and not to the Register, but to the Orphan’s Court from which he derives his authority, for the faithful execution of the trust, and payment of the money to such persons as the court, by its decree, may direct. And thus far the law was determined in Reed v. The Commonwealth, 11 Serg. & Sawle, 441. In the event of his death, then, who shall perfect his administration of the real assets, and save the condition of his bond? To say nothing of the inability of his personal representative to put those assets into the hands of anyone not designated by the Orphans’. Court without forfeiting the bond, it is plain, that if he retains them with a view to a performance of the trust, the parties beneficially entitled will have a double security, and that if they are put into the hands of the administrator de bonis non, they will have no security at all: ought not that alone to be decisive? But the power of such an administrator is derived exclusively from the grant of the Register, which extends not beyond his own jurisdiction, and consequently not to the real [487]*487assets. How, then, can he succeed to a title derived irom a decree to which neither he nor the Register was party or privy? The special administration under the decree of the Orphans’ Court, could not pass as an accessary by the grant of an officer who did not create it, and consequently had no power to transfer it. It is no answer to this last objection, to say that it rests on technical grounds; nor to the previous one, that an administrator is entitled to administer the surplus proceeds of an execution levied of land, though he .give no additional security, and though the Register from whom he derived his authority, had no jurisdiction of the subject-matter. All jurisprudence is founded more .or less, in artificial reason which cannot be disturbed without endangering the superstructure; and for the rest, the right of an administrator, to have, without security given, the proceeds of land converted by an execution, is a consequence forced on the courts by the necessity arising from the want of legislative provision, and not the legitimate subject of an inference applicable to a case in which there is no such necessity. A more plausible inference might be drawn from the provision which authorizes an administrator de bonis non, to execute the deed in the event of the administrator’s death, without having completed the title. That duty, however, like the agency of a sheriff, whose predecessor has died in similar circumstances, is purely ministerial, and without relation to the trust of the' money. In fact, where there is no administrator de bonis non, the law allows the Orphans’ Court to use the sheriff, as an instrument to pass the title; yet no one ever suspected that his agency in this particular, gives him a right to demand the money of the administrator’s representative.
But it is said, that proof of an authority from one of the plaintiffs, for the administrator de bonis non, to receive the money, was offered at the trial and rejected. To determine that, it is necessary to ascertain the circumstances. By virtue of an execution on the present judgment, the land of the defendant Lee had been sold to Mr. Coioden for a small sum, who agreed to permit Lee to dispose of it for his own benefit, on condition that he would re-im-burse Coioden what he had paid to the sheriff, and also discharge two other debts, which he owed him. Coioden subsequently conveys to the administrator de bonis non, who in turn lets the land to Lee, with permission to sell it in a given time, and credit the present judgment with the residue of the purchase money, having first paid six hundred dollars, and a small sum for expenses, due the administrator de bonis non, in his oion or another’s right; and it is the ratification of this agreement by one of the plaintiffs, that was offered to be proved.
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The opinion of the court was delivered by
GibsoN, C. J.
That the administrator de bonis non derived an authority from the grant of administration to give an acquittance for this money, will hardly be pretended. He was entitled to the assets remaining in specie, whether in money or goods, and whether in the hands of the late administrator or outstanding. The bare receipt of assets is doubtless not the commencement of an administration of them; but for wasting or converting them, an administrator de bonis non has no title to sue at law or in equity, the remedy being immediate by the creditors or parties ultimately entitled. Coleman v. McMurdo, 5 Rand., 51. And the same law seems to have been held in Allen v. Irwin, 1 Serg. & Rawle, 544. But the principle has technical reason, as well as authority, to support it. The Ordinary in England, or the Register here, has no jurisdiction of any thing that was not a part of the decedent’s personal estate at his death; nor power to commit the administration of any thing else to his officer. An outstanding debt may, with strict propriety, be said to remain in specie, the chose in action of the decedent, though suit were brought to recover it by the first administrator, that being but a means to procure the receipt of it, which does not confound it with the administrator’s own property; and for this reason an administrator was entitled by the common law toa new action, instead of an execution of the first administrator’s judgment, since given him by statute, as he still is to the proceeds of his execution when brought into court. But it never has been .held, here or elsewhere, that a bond taken by an executor or administrator for the decedent’s debts, does not discharge the old duty and create a new one. The instances in Roll’s Abr. 602; 6 Mod. 91, and 10 Mod. 315, are authorities directly in point. An action can be maintained on it only by the obligee; and that no judge has ven-[486]*486'iured, iii these days of juridical reform, to say that even he can sue on it in a representative character, is sufficient in all reason to prove that it creates but a personal duty.
The commission of an administrator de bonis non, extends but to the residue of the goods committed to the first administrator by the original grant. What these were is perceptible at a glance, in the bond required by the act of 1794, the condition of which is, that the administrator shall “administer according to law, the goods, chattels and credits of the deceased, at the time of his death.” These are the subjects of an administration proper, and precisely of that which is granted by the Register here, in the same way that it is granted by the Ordinary in England, where an administrator can have no business, with the real assets, actual or contingent; and where the bond required by the 22d and 33d Car., 2 c. 10, is nearly word for word the same as that required by our act of assembly. The business of an administration proper, then, relates to but what was the personal estate of the deceased at his death; and to that only does the security given to the Register extend. For this "reason it is that an administrator who sells real estate, gives additional security; and not to the Register, but to the Orphan’s Court from which he derives his authority, for the faithful execution of the trust, and payment of the money to such persons as the court, by its decree, may direct. And thus far the law was determined in Reed v. The Commonwealth, 11 Serg. & Sawle, 441. In the event of his death, then, who shall perfect his administration of the real assets, and save the condition of his bond? To say nothing of the inability of his personal representative to put those assets into the hands of anyone not designated by the Orphans’. Court without forfeiting the bond, it is plain, that if he retains them with a view to a performance of the trust, the parties beneficially entitled will have a double security, and that if they are put into the hands of the administrator de bonis non, they will have no security at all: ought not that alone to be decisive? But the power of such an administrator is derived exclusively from the grant of the Register, which extends not beyond his own jurisdiction, and consequently not to the real [487]*487assets. How, then, can he succeed to a title derived irom a decree to which neither he nor the Register was party or privy? The special administration under the decree of the Orphans’ Court, could not pass as an accessary by the grant of an officer who did not create it, and consequently had no power to transfer it. It is no answer to this last objection, to say that it rests on technical grounds; nor to the previous one, that an administrator is entitled to administer the surplus proceeds of an execution levied of land, though he .give no additional security, and though the Register from whom he derived his authority, had no jurisdiction of the subject-matter. All jurisprudence is founded more .or less, in artificial reason which cannot be disturbed without endangering the superstructure; and for the rest, the right of an administrator, to have, without security given, the proceeds of land converted by an execution, is a consequence forced on the courts by the necessity arising from the want of legislative provision, and not the legitimate subject of an inference applicable to a case in which there is no such necessity. A more plausible inference might be drawn from the provision which authorizes an administrator de bonis non, to execute the deed in the event of the administrator’s death, without having completed the title. That duty, however, like the agency of a sheriff, whose predecessor has died in similar circumstances, is purely ministerial, and without relation to the trust of the' money. In fact, where there is no administrator de bonis non, the law allows the Orphans’ Court to use the sheriff, as an instrument to pass the title; yet no one ever suspected that his agency in this particular, gives him a right to demand the money of the administrator’s representative.
But it is said, that proof of an authority from one of the plaintiffs, for the administrator de bonis non, to receive the money, was offered at the trial and rejected. To determine that, it is necessary to ascertain the circumstances. By virtue of an execution on the present judgment, the land of the defendant Lee had been sold to Mr. Coioden for a small sum, who agreed to permit Lee to dispose of it for his own benefit, on condition that he would re-im-burse Coioden what he had paid to the sheriff, and also discharge two other debts, which he owed him. Coioden subsequently conveys to the administrator de bonis non, who in turn lets the land to Lee, with permission to sell it in a given time, and credit the present judgment with the residue of the purchase money, having first paid six hundred dollars, and a small sum for expenses, due the administrator de bonis non, in his oion or another’s right; and it is the ratification of this agreement by one of the plaintiffs, that was offered to be proved. The offer then disclosed an agreement between a debtor and one of his creditors, who hav[488]*488ing become the owner of the debtor’s land at an undervalue, permitted him to sell it, and on condition that he would first pay the creditor’s debt, and apply the residue of the purchase money to another debt due by him to another person. Was there any thing in that, like an authority for the first named' creditor to receive both debts? Had he stood in the relation of a stranger to the decedent in whose right the judgment was obtained, no one would imagine that such a thing was contemplated. But he certainly was a stranger to the debt, and there is the same reason why he shóuld not be supposed to exercise the ownership of it. In its letter and its spirit, then, the whole effect of the agreement as ratified by one of the plaintiffs, was that the proceeds of the sale should go to satisfy both debts, the one due the administrator de bonis non, having a preference; but that surely implied no authority in any one hand to receive for both. It is said, however, that the question 'of authority was for the jury, who might have found in favor of the affirmative, had the evidence of it been left to them. That is, in a very few-words, a very satisfactory argument for its rejection. It is in cases like the present, where to avoid a real or fancied hardship, the jury are predisposed to find in a particular way, on a mere show of evidence, that rules of competency produce their choicest fruit, and are therefore to be most sternly enforced. The judge renders his best service to the cause of justice, when he prevents a jury from disregarding the law, by depriving them of a pretext for it. But was the existence of the authority, really a question of fact? It depended on the construction of a written agreement between the administrator de bonis non, and one of the defendants, which was ratified, as it is said, by one of the plaintiffs. Was that for the jury? The counsel himself did not treat it as such. Instead of apprising the judge that such was the drift of the matter, and advancing directly to the point proposed, as he certainly would have done, had he felt himself warranted to assert the existence of an authority in fact, he proposed to prove the bare fact of ratification, and leave it to its legal consequences. This being the main, perhaps the only point in the cause, we see no reason to disturb. the verdict.
Huston, J. and Ross, J. dissented.
Judgment affirmed.
In Hosier v. Arundel, 3 Bos. & P. 7., Lord Jlhanly, though evidently disposed to favor the right of the executor to sue in a representative character, wherever the thing to be recovered would be assets, was constrained to admit that he cannot so recover on a bond made to himself, and for this very reason, because an administrator de bonis non could not sue on it, or prevent the personal representative of the first administrator from retaining.