The opinion
Breese, J. As to the form of the judgment entered in this cause, it was clearly wrong. The action was debt on a bond for the penalty. The judgment should have been entered for the penalty, as the debt, to be discharged by the payment of such damages, as might be proved and the jury or court find.
But this is now immaterial, as our decision is upon the merits. The plaintiff has shown no cause of action whatever. As administrator de bonis non, he cannot call the prior administrator to account. There is no responsibility of that nature. The first administrator and his sureties are responsible to the creditors, distributees or heirs of the intestate, for the assets which may have come to his hands, but not to his successor. Whatever goods and chattels of the estate remain in specie, or can be discovered, the administrator de bonis non has a right to recover into his possession, but nothing else. The case of Rowan v. Kirkpatrick et al., 14 Ill. 8 , is decisive of this case.
In that case the court say: “ It was insisted on the argument, that it was the duty of Rowan, as administrator de bonis non of James, to collect from the estate of Alexander all claims which the heirs of James might have upon it; and that the heirs could not maintain a suit against the administrator of Alexander Reid, for assets converted by him in the administration by him of their ancestor’s estate. Directly the reverse is the law. The heirs or distributees can, and the administrator de bonis non cannot, maintain such a suit. An administrator de bonis non has no authority to call upon the first administrator for an account of assets already administered upon. His commission only authorizes him to administer upon so much of the estate as was unadministered upon by the former administrator. Whatever goods and chattels of the first estate remain in specie, or can be traced and distinguished, the administrator de bonis non has a right to recover ; but he has no right to call for an account of any part of the estate sold, converted, or wasted by the first administrator. When an administrator converts the goods of an intestate to his own use, it is an administration of such goods, and being an administration, is consequently without the commission of an administrator de bonis non. The established'practice, therefore, is, for the distributees or creditors of the intestate, and not the administrator de bonis non, to prosecute the representatives of the first administrator for any waste or misapplication of the assets of that administration.”
Warwick v. McMerdo, 5 Randolph, 51; Cheatham v. Friend, 9 Leigh, 580 ; Smith v. Carrese, 1 Richardson’s Eq. Rep. 123; Oldham v. Collins, 4 Bibb, 49 ; Felts v. Brown, 7 Bibb, 147 ; Young v. Kimball, 8 Blackford, 167; Bacon’s Abr., title Executor, B. 2; 1 Williams on Executors, 656; Potis v. Smith, 3 Rawle, 361 : Hagthorp v. Hooker, 1 Gill & John. 270 ; Coleman v. McMerdo, 5 Randolph, 51; Thomas v. Hardwick, 1 Kelly, 78 ; Newhall v. Turney, 14 Ill. 338 -341. See also, the case of Semele Short v. Johnson, ante, p. 489.
The judgment is wrong, both in form and substance, and must be reversed.
Judgment reversed.