Trippe, Judge.
1. The estate of the testator, Tharp, is insolvent. The former representative is also insolvent. Mrs. Tharp was the executrix, and gave no bond, even when it was required of her, and was consequently removed. The complainant is the administrator de bonis non, and bi’ought suit against Mrs. Tharp and the defendant, W. J. Ringer, for the purpose of recovering in behalf of other creditors, a large excess which it is claimed was paid by the executrix to Ringer as a creditor, over and above his proper share of the assets. If a creditor obtains from an insolvent representative of an insolvent estate more than his proportion of his debt, there is no other •way to correct the wrong except by a suit against such creditor. This is more especially true if such creditor know that the estate is insolvent. If the executrix could respond for the devastavit, then a recovery against her would be sufficient. But if she and the estate are both insolvent, or if such creditor confederated with her to commit the waste,.then the right [367]*367exists against both. This suit was against both, and so was the verdict. If legacies have been paid, a creditor, after exhausting the assets in the hands of the executor, may proceed against each legatee for his pro rata share: Code, section 2467. The same principle would require a creditor to refund the excess that may have been paid to him.
2. A new trial was granted in the court below on the ground that the verdict was not sustained by the evidence. We take it that the court was of opinion that the verdict was for too great an amount under the testimony. We have looked closely through the long record in the case, embracing the returns of both representatives, and we cannot say that the court was so clearly wrong as to demand a reversal of his judgment. It is difficult from the record to ascertain what was the real amount of assets in the hands of the present representative of the estate for distribution amongst creditors. The greater that is, so much the greater would the defendant’s (Ringer’s) share be, and so much the more would he be allowed to retain. This, of course, would affect the recovery against him. A calculation was submitted by counsel for plaintiff in error, showing the amount of assets, and of debts, making about twelve cents in the dollar to be paid on the note debts. If it be not more than this the verdict would seem to be about right. But on looking to the returns made by the administrator de bonis non, there appears in the inventory a return of four hundred acres of land, appraised at $3,000 00, and several hundred dollars of claims or money received for rent. These do not, so far as we can see, appear to have been accounted for in the calculation. An item of $600 00 for resale of land taken back from young Mr. Tharp is given. But that seems to have been a sale of two hundred acres. We cannot tell from the record what disposition should be made of these. If they were added to the calculation furnished us it would increase the amount of assets, and give the defendant a larger credit than the jury allowed. We are not clearly satisfied what would be a correct amount, if any, to be written off the verdict, as we were urged to direct should be done, provided [368]*368this court thought it was too large. We therefore determine to let the new trial stand.
Judgment affirmed.
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