Spencer, J.,
delivered the opinion of the court.
The defendant’s counsel have made three objections to the declaration,
[440]*4401. That the breach, in stating that goods, chattels, and credits, of the deceased, to the valué of 500 dollars,, have come to the hands and possession of the administratrix, is bad, in not setting forth the kind of goods specially;
2. 'That the non-payment of the judgment cannot be assigned ...as a breach of the condition, and,
3. That no action cambe maintained for’not duly administering the goods and chattel's- of the intestate'.
As to, the first point; in trespass or trover it is necessary,' undoubtedly, to state, with sufficient certainty, the goods taken, or converted; hut in-these cases,'the plaintiff is presumed to know fiis own goods, find the particulars of those for which he' sues. In the present case, the. plaintiff is not to be presumed to have knowledge of the goods, chattels, arid credits, of the intestate. In looking into precedents
The sec'ond point does not,strike me with any force ; I think it proper to state in the breach, the debt actually unpaid, , and-for which the suit is brought. No reason has been assigned’ against this, and its propriety is manifest; the judgment sets forth ascertains-the'debt in a conclusive maimer,- and the sheriff’s return of nulla bona on the execution, is evidence that there were no goods or-chattels of fhe intestate, out of which the same could be satisfied.
- As to the third point,. Lord Holt is made to say,' in the case of the Archbishop of Canterbury v. Wills, (1 Salk. 316.,) that though, by the words of the condition, the administrator is to ad* foinjster well and truly,' thát,shall Ve'construed.in bringinghis 3Qr [441]*441ftottnt, and not in paying the debts of the intestate, and, therefore, a creditor shall not take an assignment of the bond, and sue it, and assign for a breach, the non-payment of a debt to him, or a devasiavii committed by the administrator, for that would be needless and infinite. This case is referred to by the elementary writers, almost exclusively, to maintain the proposition that a creditor of the intestate cannot cause the administration bond to be put in suit for not well and truly administering. I do not believe that to- be the law now, even in England. In the case of the Archbishop of Canterbury v. House, (Cowp. 140.,) a suit was brought upon such a bond,- at the instance of a creditor, and by the consent of the archbishop, and the very point was taken, on a motion to stay proceedings, that he could not authorize a creditor to put the bond in suit, but only the next of kin. Lord Mansfield, after stating the condition of the bond, and that it was agreed that.the ordinary might permit his name to be used at the instance of the next of kin, says, “ in like manner, if such application is made by a creditor, I see no reason why he should not have the same privilege ; and I know of no authority which says that the ordinary cannot empower him to put the bond in suit; it is ex debito justitice that he ought to do so; for though a creditor has no concern in the latter part of the condition, namely, the distribution of the surplus money among the next of kin, yet he is most materially and principally interested in the administrator’s delivering in a true inventory, and in the due administration of the effectsand all the judges concurred in refusing the motion. In the case of Greenside & others v. Benson & others, (3 Atk. 248.,) Lord Iiardwicke sanctioned a writ and judgment upon a bond of administration, at the instance of a creditor, and made it the basis of his decree. Our statute (1 N. R. L. 447. s. 10.) requires the judge of probate, and the surrogates, upon granting administration, except in certain specified cases, to take of the person to whom administration shall be granted, sufficient bonds to the people of this state, with two or more competent sureties, in such penalty as such judge or surrogate shall think reasonable, respect being hadrto the value of the estate. The condition prescribed is, among other things, well and truly to administer, according to taw, the goods, chattels, and credits, of the deceased ; the same section provides, in case the bond shall become forfeited, that it shall be lawful for the judge of probate, or surrogates granting admi» [442]*442nisíration, to cause the same to be prosecuted, at the request of the party'grieved hy such forfeiture:
The question recurs, what is a forfeiture of the bond ? Most certainly an unfaithful administration of the estate of theintestate, in not applying the goods, chattels, and credits- of the deceased to the payment bf his debts ; the law' enjoins it.on an executor or administrator, to collect the estate bf the testator or ' intestate, to convert.it into money, to pay the funeral expenses • first, then the debts he owed, and then legacies; after which, in" case of intestacy, the residue is to be distributed among the next of ¿in, according to the statute. Á conversion of the effects of the intestate to the .pEi.vate .use of the administrator, leaving the debts unpaid, is a violation pf the trust reposed in the administrator, and a breach of the condition of the bond, in noi admiñistering the" goods, chattels, and credits, according to law. And we have seen that the judge of ■probate, or .surrogate, in case the bond becomes forfeited, may, at the request of the party aggrieved, cause the bond to be prosecuted.; and a creditor ' of the intestate is a party emphatically aggrieved by á. mal-administration of the estate, by which he has lost the means of getting his debt paid. How it could ever have, entered the mind of any person, that the condition bf such, a bond was Satisfied by merely exhibiting an inventory within six months, is to me very extraordinary. '
The penalty of the bond, and the sufficiency of the sureties, are to be taken in reference to the valúe of the estate of the intestate, and it is made a distinct and substantive part of the condition, that the estate, thus committed to the-administrator, shall be administered .according to law; and, Undoubtedly, bne of the primary objects of the legislature, in authorizing the granting of administration, and tafcing a bond, was to secure the payment of debts due. the intestate. And yet, we are told, the condition is performed by the mere act of exhibiting an inventory, so far ás respects the sureties.
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Spencer, J.,
delivered the opinion of the court.
The defendant’s counsel have made three objections to the declaration,
[440]*4401. That the breach, in stating that goods, chattels, and credits, of the deceased, to the valué of 500 dollars,, have come to the hands and possession of the administratrix, is bad, in not setting forth the kind of goods specially;
2. 'That the non-payment of the judgment cannot be assigned ...as a breach of the condition, and,
3. That no action cambe maintained for’not duly administering the goods and chattel's- of the intestate'.
As to, the first point; in trespass or trover it is necessary,' undoubtedly, to state, with sufficient certainty, the goods taken, or converted; hut in-these cases,'the plaintiff is presumed to know fiis own goods, find the particulars of those for which he' sues. In the present case, the. plaintiff is not to be presumed to have knowledge of the goods, chattels, arid credits, of the intestate. In looking into precedents
The sec'ond point does not,strike me with any force ; I think it proper to state in the breach, the debt actually unpaid, , and-for which the suit is brought. No reason has been assigned’ against this, and its propriety is manifest; the judgment sets forth ascertains-the'debt in a conclusive maimer,- and the sheriff’s return of nulla bona on the execution, is evidence that there were no goods or-chattels of fhe intestate, out of which the same could be satisfied.
- As to the third point,. Lord Holt is made to say,' in the case of the Archbishop of Canterbury v. Wills, (1 Salk. 316.,) that though, by the words of the condition, the administrator is to ad* foinjster well and truly,' thát,shall Ve'construed.in bringinghis 3Qr [441]*441ftottnt, and not in paying the debts of the intestate, and, therefore, a creditor shall not take an assignment of the bond, and sue it, and assign for a breach, the non-payment of a debt to him, or a devasiavii committed by the administrator, for that would be needless and infinite. This case is referred to by the elementary writers, almost exclusively, to maintain the proposition that a creditor of the intestate cannot cause the administration bond to be put in suit for not well and truly administering. I do not believe that to- be the law now, even in England. In the case of the Archbishop of Canterbury v. House, (Cowp. 140.,) a suit was brought upon such a bond,- at the instance of a creditor, and by the consent of the archbishop, and the very point was taken, on a motion to stay proceedings, that he could not authorize a creditor to put the bond in suit, but only the next of kin. Lord Mansfield, after stating the condition of the bond, and that it was agreed that.the ordinary might permit his name to be used at the instance of the next of kin, says, “ in like manner, if such application is made by a creditor, I see no reason why he should not have the same privilege ; and I know of no authority which says that the ordinary cannot empower him to put the bond in suit; it is ex debito justitice that he ought to do so; for though a creditor has no concern in the latter part of the condition, namely, the distribution of the surplus money among the next of kin, yet he is most materially and principally interested in the administrator’s delivering in a true inventory, and in the due administration of the effectsand all the judges concurred in refusing the motion. In the case of Greenside & others v. Benson & others, (3 Atk. 248.,) Lord Iiardwicke sanctioned a writ and judgment upon a bond of administration, at the instance of a creditor, and made it the basis of his decree. Our statute (1 N. R. L. 447. s. 10.) requires the judge of probate, and the surrogates, upon granting administration, except in certain specified cases, to take of the person to whom administration shall be granted, sufficient bonds to the people of this state, with two or more competent sureties, in such penalty as such judge or surrogate shall think reasonable, respect being hadrto the value of the estate. The condition prescribed is, among other things, well and truly to administer, according to taw, the goods, chattels, and credits, of the deceased ; the same section provides, in case the bond shall become forfeited, that it shall be lawful for the judge of probate, or surrogates granting admi» [442]*442nisíration, to cause the same to be prosecuted, at the request of the party'grieved hy such forfeiture:
The question recurs, what is a forfeiture of the bond ? Most certainly an unfaithful administration of the estate of theintestate, in not applying the goods, chattels, and credits- of the deceased to the payment bf his debts ; the law' enjoins it.on an executor or administrator, to collect the estate bf the testator or ' intestate, to convert.it into money, to pay the funeral expenses • first, then the debts he owed, and then legacies; after which, in" case of intestacy, the residue is to be distributed among the next of ¿in, according to the statute. Á conversion of the effects of the intestate to the .pEi.vate .use of the administrator, leaving the debts unpaid, is a violation pf the trust reposed in the administrator, and a breach of the condition of the bond, in noi admiñistering the" goods, chattels, and credits, according to law. And we have seen that the judge of ■probate, or .surrogate, in case the bond becomes forfeited, may, at the request of the party aggrieved, cause the bond to be prosecuted.; and a creditor ' of the intestate is a party emphatically aggrieved by á. mal-administration of the estate, by which he has lost the means of getting his debt paid. How it could ever have, entered the mind of any person, that the condition bf such, a bond was Satisfied by merely exhibiting an inventory within six months, is to me very extraordinary. '
The penalty of the bond, and the sufficiency of the sureties, are to be taken in reference to the valúe of the estate of the intestate, and it is made a distinct and substantive part of the condition, that the estate, thus committed to the-administrator, shall be administered .according to law; and, Undoubtedly, bne of the primary objects of the legislature, in authorizing the granting of administration, and tafcing a bond, was to secure the payment of debts due. the intestate. And yet, we are told, the condition is performed by the mere act of exhibiting an inventory, so far ás respects the sureties. It is true, the surrogate has power to call the administrator to account, and to make distribution, .after the debts, funeral charges, and all expenses, aré first allowed, and- he may coerce obedience by imprisonment; but the surrogate has no jurisdiction over, the sureties in any other way than by directing their bond to be sued. All this, is no satisfaction óf a creditor’s debt, and in case bf the wasting the estate, and the insolvency of the administrator, the creditor is remediless, [443]*443unless he can obtain a remedy on the bond against the sureties, T have not the least doubt but that, upon a just construction the condition of the bond, in reference to the requisition of the statute, as to the manner of iaking’it, and the authority to cause it to be sued at the request of the party aggrieved, the sureties are answerable for the wasting of the estate by the administrator, and the non-payment of the debts of the intestate, if there be assets.
Were it necessary to cite authorities in support of this construction, it will be seen that my view of the case is sanctioned by the cases in 9 Mass. Rep. 117. and in 1 Wash. Rep. 31.
The -plaintiff must have judgment on the demurrer. -
Judgment for the plaintiff.
2 Chitty, 609.