Judge Stites
delivered the opinion of the court.
This was an action against Samuel W. Patterson, as administrator of Samuel Patterson, deceased, and his sureties in his official bond, for a devastavit, and failure on the part of the administrator, to satisfy a decree in favor of the plaintiff against the estate of his intestate.
The defendants resisted -a recovery upon three grounds, set out in the .three paragraphs of their answer, to each of which plaintiff demurred. Upon the trial below, the court .being of opinion that the petition was insufficient, gave judgment upon demurrer for the defendants, and the plaintiff has appealed.
The petition sets forth and exhibits the decree against the estate, and'also an execution purporting to have been issued thereon, with a return of '■'•nulla [208]*208bona” It likewise exhibits a settlement made by the administrator with the county court of Livingston, showing that a large amount of assets had come to his hands, and avers that they had never been accounted for, &c. The exhibits referred to in the petition are prayed to be regarded as a part thereof, and were doubtless considered upon the demurrer as such; whether properly so considered, need not now be decided as, in our opinion, the petition is sufficient with or without them.
The allegations as to the appointment of the administrator, and the execution of the bond, the obtention of the decree, and return of execution thereon unsatisfied, the sufficiency of assets in the hands of the administrat or for the payment of the decree, and his failure to pay the same or to account for the assets of the estate, are comprehensive, and full enough to support the action, unless, l’egarding the exhibits as a part of the petition, they present some obstacle to the recovery which will avail the defendants upon demurrer.
The decree, it appears, was against Samuel W. Patterson, as administrator and sole heir at law of Samuel Patterson, deceased, and was to be paid out of assets which came to his hands as administrator, and estate descended, &c., on which an execution was awarded, &c.; and in the decree it is provided that if the money is not made, other orders therein mentioned will be allowed for its enforcement, &c.
The execution alledged to have been issued thereon, and exhibited, is directed to the sheriff of Livingston, and commands him “that of the estate of Samuel W. Patterson, administrator and only heir at law of Sam. Patterson, Sr., late of your bailiwick, you cause to be made the sum of five hundred and eighty-one dollars, &c;” and the return thereon is “no properly.”
It appears from the sheriffs return of the original process in the case, that the administrator was a [209]*209non-resident of Livingston when this suit was brought.
1. A return of nulla bona, upon an execution .issued upon a judgm’t. against an administrator, is not an essential requisite to the maintenance of. an action upon, his bond for a devastavit. (1 J. J. Marshall, 184; 6 lb. 228.)
It is contended that inasmuch as the execution exhibited is not against the assets and estate descended, but against the estate of the administrator, and does not appear to be directed to the county of his residence; and inasmuch, also, as there was no other coercive step or proceeding had to enforce the collection of the decree, and no alledged demand of the money from the administrator before suit brought, that the action for a devastavit was not maintainable; or in other words, that a return of nulla Iona upon an execution issued in conformity with the decree, and directed to the county of the residence of the administrator, or some evidence of coercive steps by rule or attachment to collect the decree, or a demand before the suit was commenced, was indispensable to enable the plaintiff to-maintain his action.
We do not so understand the law as settled, by this court.
In Thomas’ ad'mr. vs Commonwealth use &c., (3 J. J. Marshall, 123,) and in Clarke vs Commonwealth use &c. (5 Monroe, 101,) (Judge Mills dissenting in the latter case) it was held that before a creditor could-maintain an action on an administrator’s bond suggesting a devastavit, he must have his judgment against the administrator and a return of nulla lona; and that the sureties in the bond were not liable until after such return was had.
But the case of Clarke vs Commonwealth &c. supra was subsequently reviewed in Hobbs vs Middleton, 1 J. J. Marshall, 184 and the views of Judge Mills adopted; and the doctrine of the latter case was recognized and reaffirmed in Jeeter vs Durham, 6 J. J. Mar. 228, and has not been departed from since. So that it may be now considered as settled that a return of nulla bona upon a judgment against an administrator is not an essential prerequisite to an action upon, the bond for a devastavit.
3. There is.no tween ""r6 judgment against an UvTed ’ of the ties^f the intes" tate, and a dean 8 ^eeotion may issue,_ as the aet’of j 811, (St. Law, 673,) prohibits the administrator nor his sureties from showing that there had been a full administration when the judgment or decree was rendered, or limiting the "amount* of assets in hand,
3. In a suit aanlThis"sureties on his bond, to decreed upon a mortgage, it is not competent for the defendsueSthePvaMi"ty of the mortgage, and re-litigate the questions decree*1 (f5*j 'j Marshall, 179.)
There is no substantial difference between an ordinary judgment de bonis testatoris, and a decree to be paid of assets on which an execution may issue, ^01’ *s there, in our opinion, any good reason why such decree should not, in the pursuit of the administrator, and his sureties on the bond for a devastavit, he regarded for every purpose as equal to ajudgment, which, since the act of 1811,^1 Stat. law 672,) *-s evidence of the amount due; but neither precludes the administrator nor his sureties from avoiding lia-bility upon the bond, by showing that the former had •fully administered when the judgment or decree was obtained; or limiting such liability to the extent of •assets then on hand.
It was the duty of the administrator in this case to satisfy the decree in question immediately upon its rendition, and failing in this, he and his sureties in his bond became at once liable for devastavit to the amount of the decree, provided the assets then on hand or unadministered were sufficient for its satisfaction; and the action was maintainble upon the bond without further proceedings upon the decree.
We are therefore of opinion that the petition was sufficient, and that the demurrer to it was improperly sustained.
With regard to the answer, our opinion is, that neither paragraph severally, nor all collectively, present a -valid defense to the action.
The first undertakes substantially to assail the original mortgage upon which the decree is based, an^ reoPen alld relitigáte the whole controversy which had just been settled by the decree, and thus seeks to question collaterally the fairness of the original decree, which is only allowable by direct -, J proceeding for that purpose.
The responsibility of the sureties in the .administrators bond is incidental and collateral .to that of the ... . . .
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Judge Stites
delivered the opinion of the court.
This was an action against Samuel W. Patterson, as administrator of Samuel Patterson, deceased, and his sureties in his official bond, for a devastavit, and failure on the part of the administrator, to satisfy a decree in favor of the plaintiff against the estate of his intestate.
The defendants resisted -a recovery upon three grounds, set out in the .three paragraphs of their answer, to each of which plaintiff demurred. Upon the trial below, the court .being of opinion that the petition was insufficient, gave judgment upon demurrer for the defendants, and the plaintiff has appealed.
The petition sets forth and exhibits the decree against the estate, and'also an execution purporting to have been issued thereon, with a return of '■'•nulla [208]*208bona” It likewise exhibits a settlement made by the administrator with the county court of Livingston, showing that a large amount of assets had come to his hands, and avers that they had never been accounted for, &c. The exhibits referred to in the petition are prayed to be regarded as a part thereof, and were doubtless considered upon the demurrer as such; whether properly so considered, need not now be decided as, in our opinion, the petition is sufficient with or without them.
The allegations as to the appointment of the administrator, and the execution of the bond, the obtention of the decree, and return of execution thereon unsatisfied, the sufficiency of assets in the hands of the administrat or for the payment of the decree, and his failure to pay the same or to account for the assets of the estate, are comprehensive, and full enough to support the action, unless, l’egarding the exhibits as a part of the petition, they present some obstacle to the recovery which will avail the defendants upon demurrer.
The decree, it appears, was against Samuel W. Patterson, as administrator and sole heir at law of Samuel Patterson, deceased, and was to be paid out of assets which came to his hands as administrator, and estate descended, &c., on which an execution was awarded, &c.; and in the decree it is provided that if the money is not made, other orders therein mentioned will be allowed for its enforcement, &c.
The execution alledged to have been issued thereon, and exhibited, is directed to the sheriff of Livingston, and commands him “that of the estate of Samuel W. Patterson, administrator and only heir at law of Sam. Patterson, Sr., late of your bailiwick, you cause to be made the sum of five hundred and eighty-one dollars, &c;” and the return thereon is “no properly.”
It appears from the sheriffs return of the original process in the case, that the administrator was a [209]*209non-resident of Livingston when this suit was brought.
1. A return of nulla bona, upon an execution .issued upon a judgm’t. against an administrator, is not an essential requisite to the maintenance of. an action upon, his bond for a devastavit. (1 J. J. Marshall, 184; 6 lb. 228.)
It is contended that inasmuch as the execution exhibited is not against the assets and estate descended, but against the estate of the administrator, and does not appear to be directed to the county of his residence; and inasmuch, also, as there was no other coercive step or proceeding had to enforce the collection of the decree, and no alledged demand of the money from the administrator before suit brought, that the action for a devastavit was not maintainable; or in other words, that a return of nulla Iona upon an execution issued in conformity with the decree, and directed to the county of the residence of the administrator, or some evidence of coercive steps by rule or attachment to collect the decree, or a demand before the suit was commenced, was indispensable to enable the plaintiff to-maintain his action.
We do not so understand the law as settled, by this court.
In Thomas’ ad'mr. vs Commonwealth use &c., (3 J. J. Marshall, 123,) and in Clarke vs Commonwealth use &c. (5 Monroe, 101,) (Judge Mills dissenting in the latter case) it was held that before a creditor could-maintain an action on an administrator’s bond suggesting a devastavit, he must have his judgment against the administrator and a return of nulla lona; and that the sureties in the bond were not liable until after such return was had.
But the case of Clarke vs Commonwealth &c. supra was subsequently reviewed in Hobbs vs Middleton, 1 J. J. Marshall, 184 and the views of Judge Mills adopted; and the doctrine of the latter case was recognized and reaffirmed in Jeeter vs Durham, 6 J. J. Mar. 228, and has not been departed from since. So that it may be now considered as settled that a return of nulla bona upon a judgment against an administrator is not an essential prerequisite to an action upon, the bond for a devastavit.
3. There is.no tween ""r6 judgment against an UvTed ’ of the ties^f the intes" tate, and a dean 8 ^eeotion may issue,_ as the aet’of j 811, (St. Law, 673,) prohibits the administrator nor his sureties from showing that there had been a full administration when the judgment or decree was rendered, or limiting the "amount* of assets in hand,
3. In a suit aanlThis"sureties on his bond, to decreed upon a mortgage, it is not competent for the defendsueSthePvaMi"ty of the mortgage, and re-litigate the questions decree*1 (f5*j 'j Marshall, 179.)
There is no substantial difference between an ordinary judgment de bonis testatoris, and a decree to be paid of assets on which an execution may issue, ^01’ *s there, in our opinion, any good reason why such decree should not, in the pursuit of the administrator, and his sureties on the bond for a devastavit, he regarded for every purpose as equal to ajudgment, which, since the act of 1811,^1 Stat. law 672,) *-s evidence of the amount due; but neither precludes the administrator nor his sureties from avoiding lia-bility upon the bond, by showing that the former had •fully administered when the judgment or decree was obtained; or limiting such liability to the extent of •assets then on hand.
It was the duty of the administrator in this case to satisfy the decree in question immediately upon its rendition, and failing in this, he and his sureties in his bond became at once liable for devastavit to the amount of the decree, provided the assets then on hand or unadministered were sufficient for its satisfaction; and the action was maintainble upon the bond without further proceedings upon the decree.
We are therefore of opinion that the petition was sufficient, and that the demurrer to it was improperly sustained.
With regard to the answer, our opinion is, that neither paragraph severally, nor all collectively, present a -valid defense to the action.
The first undertakes substantially to assail the original mortgage upon which the decree is based, an^ reoPen alld relitigáte the whole controversy which had just been settled by the decree, and thus seeks to question collaterally the fairness of the original decree, which is only allowable by direct -, J proceeding for that purpose.
The responsibility of the sureties in the .administrators bond is incidental and collateral .to that of the ... . . . . „ ,. principal, and a judgment in favor of a creditor aSainst the administrator concludes the sureties as to the existence and character of the debt thus as[211]*211certained, and cannot be questioned or reviewed in a suit on the administrator’s bond. (1 J. J. Marshall, 179.)
4. .If there is a sufficiency of assets to satisfy a judgment or decree against an adm’r. at the time it is rendered, the administrator is bound to show that they have been used in paying debts, or there is a liability for a devastavit, unless they have been disposed of by the fraud of the party seeking the recovery.
5. It is no answer to a suit for a devastavit to say that there is real estate sufficient to pay the judgment or decree.
The second paragraph admits that a sufficiency ©f assets came to the administrator’s hands, and also, that he acquired by descent real estate enough to satisfy the debt; but alledges that the assets and estate thus derived had been sold for the satisfaction of the administrator’s individual debts with the knowledge of plaintiff’s intestate and his counsel.
The inquiry in this case is, was there a sufficiency of assets unadministered when the decree was obtained to satisfy it; and the liability of the sureties depends upon the response. If assets enough came to the administrator’s hands before the rendition of the decree, and they were used and appropriated otherwise than in the payment of the debts of his intestate, then they were assets unadministered, and the devastavit was complete. It cannot avail the sureties in such case to say, that they went to the payment of the individual debts of the administrator, unless such mis-appropriation was procured through the fraudulent agency of the plaintiff complaining of the devastavit, which is expressly disclaimed by the paragraph in question.
The third paragraph is equally objectionable. It alledges substantially that there was still enough real estate descended to satisfy the decree; sets forth its description, and asks, that an adverse claimant to a portion thereof may be brought before the court in order to quiet title, and subject such estate to plaintiffs demand.
If this were so, as it must be regarded on demurrer, it still presents no obstacle to the recovery for a devastavit. The creditor has the option to pursue either the real estate, or his remedy upon the administrator’s bond for the alledged devastavit. The undertaking of the administrator and his sureties is that the former will “well and truly administer the goods, chattels and credits” of his intestate accord[212]*212ing to law, &c., and when he fails in this, he and his sureties are at once liable to the creditor for a devastavit; and it furnishes no answer to an action upon the bond to say that there is a sufficiency of real estate to satisfy the demand.
Wherefore the judgment of the circuit court in sustaining the demurrer to the petition is deemed erroneous, and the same is reversed, and cause remanded with directions to sustain the demurrer to the answer, and for further proceedings not inconsistent with this opinion.