administrator, or his representatives, to account for property received and disposed of. The law in this particular, so far as it obtains in states where the common law remains, is thus stated by Mr. Justice Bradley, in Beall v. New Mexico, 16 Wall. 535, 540:

"The next point made is a more serious one, to wit, that an administrator de bonis non can not maintain suit on the original administrator's bond. It is true the action is brought in the name of the territory of New Mexico, to which the bond was given, and is so far correct, but it is expressly brought for the use and benefit of William W. Griffin, administrator de bonis non,' ad the whole frame of the petition is conceived on the theory that the duty of Beall to respond for defaults and devastavits in administration is owed to the administrator de bonis non. This does not seem to be the law as understood in England or in the states which derive their principles of jurisprudence from England, although in some states statutes have been passed making it the duty of an administrator who has been displaced, or of the representatives of one who has deceased, to account to the administrator de bonis non: Wms. Ex., 443, note (1), 783, note (1), 4th Am. ed.; Wernick's Adm'r v. McMurdo, 5 Rand. 51; Hagthorp v. Hook, 1 Gill & J. 270; Bank of Penn. v. Haldeman, 1 Pen. & W. 161; Kendle v. Lee, 2 Id. 482; Drenkle v. Sharman, 9 Watts, 485; Weld v. McClure, Id. 495; Small's estate, 5 Barr, 258; Carter v. Trueman, 7 Id. 320; Adams v. Johnson, 7 Blackf. 529; 2 Redf. Law of Wills, 91, and note.

"By the English law, as administered in the ecclesiastical courts, the administrator who is displaced, or the representatives of a deceased adminis trator or executor intestate, are required to account directly to the persons beneficially interested in the estate, distributees, next of kin, or creditors; and the account may be made or enforced in the probate court, which is the proper court to supervise the conduct of administrators and executors. To the administrator de bonis non is committed only the administration of the goods, chattels, and credits of the deceased which have not been administered. He is entitled to all the goods and personal estate which remain in specie. Money received by the former executor or administrator, in his character as such, and kept by itself, will be so regarded; but if mixed with the administrator's own money, it is considered as converted, or, technically speaking, 'administered.' And all assets of the testator or intestate in the hands of third persons at the death of an administrator or executor intestate, belong to the administrator de bonis non: 1 Wms. on Ex. 781 (4th Am. ed.) Of course debts and choses in action not reduced to possession belong to this category. In this case, the claim of Hinckley's estate against his surviving partners is of this character. If anything can be realized therefrom by the prosecution of those partners, it is the duty of the administrator de bonis non to prosecute them, as much as it was his predecessor's duty to do so before his discharge. But, for the delinquency of the former adminis trator in not prosecuting, he is responsible to the creditors, legatees, and distributees directly, and not to the administrator de bonis non. This is the result of the authorities referred to. And it follows that, as the administrator de bonis non has no claim against the former administrator on this ground, he can not prosecute for it on the administration bond. It is said in Williams on Executors, referred to 1 Haggard's Ecclesiastical Reports, 139, that 'if the original administrator be dead, and administration de bonis non has been obtained, such administrator may sue the executors of the deceased administrator at law on the administration bond, in the name of the ordinary; and the court will order the bond "to be attended with," in the common law

court, and produced at the hearing of the cause:' 1 Wms. on Ex. 414. The authority referred to was the case of The Goods of Hall, in which the first administrator died without having distributed the assets in his hands, and leaving a considerable balance of the estate in the hands of his bankers. The administrator de bonis non having applied to the executors of the deceased administrator for his balance, and payment being refused, he commenced the action on the former administrator's bond, and the prerogative court sanctioned the proceeding. But this case was undoubtedly founded on the theory that money in bank was a part of the original intestate's estate in specie, and as such, that the administrator de bonis non was entitled to it. If specific effects of the estate remain in the hands of a discharged adminis trator or executor, or in the hands of his representatives, of course the administrator de bonis non is entitled to receive them. And if they are refused, he will be the proper person to institute suit on the bond to recover the amount. But this is perfectly consistent with the doctrine above expressed, that for delinquencies and devastavits he can not sue his predecessor or his predecessor's representatives, either directly or on their administration bond." This still continues to be the law in many of the states. The administra tor de bonis non can not call upon the prior administrator or executor directly or indirectly to account for the value of property converted. Only to articles unadministered existing in specie is he entitled: Appeal of the American Board of Commissioners for Foreign Missions, 27 Conn. 344; Gregory v. Harrison, 4 Fla. 56; Rowan v. Kirkpatrick, 14 Ill. 8; Marsh v. People, 15 Id. 286; Duffin v. Abbott, 48 Id. 17, in which Stose v. People, 25 Id. 600, is overrule for not observing the distinction pointed out by the following language: "No reference was made in Stose's case to the case of Marsh v. People, 15 Id. 286, where the distinction is observed between an administrator de bonis non appointed on the death of an administrator and one appointed on the revocation of the letters. In the former case the representatives of the deceased administrator can not be called to account by the subsequent administrator, but only by the heirs and distributees. In the latter, the section of the statute we have cited [Scate's Comp. 1196], expressly authorizes proceedings by the subsequent administrator against the prior administrator." In the case from 4 Fla. 56, above referred, it is noticeable that no such distinction as is made by statute in Illinois is thought to have existed at common law. So also does the common law that it is the articles remaining in specie, "unadministered," to which the administrator de bonis non is entitled, prevail in Kentucky: Warfield v. Brown, 13 Bush, 77; Slaughter v. Froman, 17 Am. Dec. 33; and in other states, Dement v. Heth, 45 Miss. 388; Carrick v. Carrick, 23 N. J. Eq. (8 C. E. Green) 364; Brownlee v. Lockwood, 20 Id. (5 C. E. Green) 239; King v. Green, 19 Am. Dec. 46, an instance of debts due the estate; Yale v. Baker, 2 Hun, 468; Wernick v. McMurdo, 5 Rand. 51; Wilson v. Ames, 10 Rep. 298, Sup. Court, Dis. of Columbia, and in all those states whose legislatures have not altered the common law.

In many other states provisions have been adopted making the prior administrator or executor accountable to the administrator de bonis non for the value of articles received but not applied to the purposes of the administration; the distinction that articles should be "in specie," being abrogated. In such jurisdictions, the right of the administrator de bonis non to compel an accounting from his predecessor is recognized: Whitworth's Distributees v. Oliver, 39 Cal. 286; Hardwick v. Thomas, 10 Ga. 268; Giles v. Brown, 60 Id. 658; State v. Porter, 9 Ind. 342; Lane v. State, 27 Id. 108, holding that a demand is not necessary before suit by an administrator de bonis non against

AM. DEC. VOL. XXIV-25

his predecessor who omits to pay over the money in his hands belonging to the estate: Donaldson v. Raborg, 26 Md. 312; State v. Flynn, 48 Mo. 513; State v. Lankford, 55 Id. 564; Seymour v. Seymour, 67 Id. 303; Wiggin v. Swett, 6 Metc. 195; Thompson v. Badham, 70 N. C. 141; Badger v. Jones, 66 Id. 505; Lansdell v. Winstead, 76 Id. 366; Little v. Walton, 23 Pa. St. 164; Curtis v. Lynch, 19 Ohio St. 392; limiting the action to the bond of the prior representative: Easterlingv. Thompson, Rice's Law, 350; Boulware v. Hendricks, 23 Tex. 667. But the right of action does not accrue until the letters are granted: Donaldson v. Raborg, 26 Md. 312; although the rights of the administrator de bonis non relate back to the death of the intestate: Badger v. Jones, 66 N. C. 305; Bell v. Speight, 11 Humph. 451.

MEANING OF ADMINISTERED."-At the common law and in those states which have not departed from it, goods "not administered" are the only ones which an administrator de bonis non has control over. Such, it is true, is the language of the rule in other states, but it is interpreted differently, giving rise to the two sets of decisions above indicated. At the common law "unadministered goods" meant, as is said by Judge Carr, in the elaborately considered case of Coleman v. McMurdo, 5 Rand. 51, "goods, chattels, and credits, which were of the testator or intestate at the time of his death." "This definition," says the judge, "turns our minds at once to the question, what amounts to an administration of assets, so far as regards the adminis trator de bonis non? Executors and administrators took the legal title to the goods and chattels of the deceased; nor were they before the statute of distribution, 22 and 23 Car. II., 1670, bound to distribute the surplus after the payment of debts and legacies. Both held in autre droit; and therefore neither could dispose by will of the property remaining in specie; both had the power, while living, of changing, altering, and converting the property, and whatever was thus altered or converted became their own goods, and descended on their deaths to their own representative. Such change or conversion of the goods was (so far as regarded the administrator de bonis non) a complete administration, and put them as effectually beyond the reach of his commission, as if they had never belonged to the testator or intestate." His honor then referred to many English decisions and continued: "These are few of the many cases scattered through the reports of the last three centuries, showing the settled course of the law. I might bring to my aid many others, where the contest was between the representative of the administrator and the administrator de bonis non; and the question uniformly turned upon the point of conversion; all agreeing that a conversion extinguished the right of the administrator de bonis non, as it was an administration, and his goods reached only to the goods and credits unadministered. Sometimes equity will follow the property where at law there might be said to be a conversion; as if the first administrator vested money of his intestate in the funds or transferred it from one fund to another. This, as it showed no intention of making the money his own, would not be considered in equity a conversion. Sometimes there will be a conversion in equity where none exists at law; that is, where some act is done by the administrator showing a clear intent to convert. These differences result from the different modes of administering justice in the two systems; and do not, in the least, affect the question; for, before whichever forum the case is brought, if it be decided that the subject-matter of dispute has been converted, that is regarded as decisive to show that the administrator de bonis non has power over it." This is the accepted interpretation of "administered" within the meaning of the rule that subjects goods in specie alone to the administrator de bonis non.

Goods sold and converted into money are "administered:" Slaughter v. Froman, 17 Am. Dec. 33.

* * *

In Gregory v. Harrison, 4 Fla. 56, 66, this further explanation of the term de bonis non administratis is given by Chief Justice Anderson on behalf of the court, referring to the above language from Coleman v. McMurdo: “Although Judge Carr speaks of 'a change or conversion of the goods,' he very clearly means a change in the property of the goods. A change in the property of the goods is therefore what is meant by these learned judges as mounting to an administration, not a change in specie. This is further and strikingly illustrated in one of the cases that have been cited, where an execator collected the debt of his testator, and having kept the money separate and distinct in a bag, it was after his death adjudged to belong to the administrator de bonis no". In this instance there had been a change in the goods, for a debt due had been changed into money; but, inasmuch as the property had not been changed, as was apparent from the executor keeping the money apart and marking it as the property of his testator, there was no change, alteration, or conversion in the technical, legal sense." A fraudulent conversion of the personalty by a former administrator or executor is not an "administration" within the contemplation of this rule. If the vendee of an intestate's personalty is party to the fraud committed by the administrator in selling, the administrator de bonis non may in equity reach the fraudulent vendee: Bell v. Speight, 11 Humph. 451, but can not maintain trover for the chattels wrongfully sold: Cheek v. Wheatley, 3 Sneed, 484. Against one to whom the executor has assigned a security belonging to the estate, and earmarked as such, in discharge of his private debt, the administrator de bonis non may maintain a suit: Parrish v. Brooks, 4 Brewst. 154.

The assets to which the administrator de bonis non is entitled comprise, therefore, debts due the estate, all the personalty of the decedent which remains in specie, and in those states which do not retain the strict rule of the common law, the amounts remaining in his predecessor's hands as well, together with such effects as have been converted fraudulently by such predecessor. In order to realize these assets, the administrator de bonis non, in those states which make the former representative render an account to him, may resort to all necessary actions: Cases cited above; 1 Wms. on Ex. 539, note b; 2 Id. 915, note e. He may maintain common law actions against a dismissed executor for assets in his hands: Wild v. McClure, 9 Watts, 495; Little v. Walton, 23 Pa. St. 164; and either sue on the bond or proceed against the predecessor by summary process: Wickham v. Page, 49 Mo. 526; and may, if desirable, resort to the sureties on the bond: Baldwin v. Dearborn, 21 Tex. 446; Commonwealth v. Mears, 5 Leg. & Ins. R. 67; Lansdell v. Winstead, 76 N. C. 366; Franklin County v. McIlvain, 5 Ohio, 200; or sue the personal representatives of the former administrator to recover the balance of an administration account: Carter v. Trueman, 7 Pa. St. 315; Giles v. Brown, 60 Ga. 658; Miller v. Alexander, 1 Hill Ch. 25.

In these various instances the actions have been sustained by the strength of the statute of the states wherein they arose. In the absence of such legislative authority, they must have failed, for the reasons given in Beall v. New Mexico, 16 Wall. 541, in regard to the liability of the administrators and executors to the decedent's heirs and distributees only.

"At common law there was no privity between an administrator and administrator de bonis non: Ellison v. Andrews, 12 Ired. 190. If an adminis. trator recovered a judgment, and died before collecting, it became ineffectual. The administrator de bonis non could not sue on it, or avail himself of it in any way: Grant v. Chamberlain, 4 Mass. 611; Beail v. New Mexico, 16 Wall.

534. The inconvenience has been remedied by legislation more or less fully in England, and probably in most of the American states. In this state, in the Revised Code, c. 1, sec. 4, enacts that no action to which an executor or administrator is plaintiff or defendant shall abate by his death, but it may be revived against the administrator de bonis non, etc.: See, also, C. C. P., sec. 64; and Rev. Code, c. 46, sec. 43. Under these and similar acts it has been settled in this state that a privity does exist between an administrator and an adminis trator de bonis non, for many, if not for all, purposes. The latter succeeds to all the rights of the intestate in respect to personal property which the administrator had not fully administered. He alone, to the exclusion of creditors and distributees, can recover from the representative of a deceased adminis trator, not only the property remaining in specie, which is the general law, but also the value of the assets which the administrator has wasted or misapplied: Ferebie v. Baxter, 12 Ired. 64; Cannon v. Jenkins, 1 Dev. Eq. 422; and numerous other cases to the same effect. The acts cited seem especially to apply to cases in which the death of a representative party occurs before a final judgment or decree. But it is held in England, upon the equity of a statute similar to ours, except that it is confined to plaintiffs, that an administrator de bonis non may revive a decree obtained by an administrator: Pew v. Cudmore, 3 Ch. 33; see, also, Botner v. Kuhin, 6 Jones, 60. And the privity is held to exist in this state, so that an administrator de bonis non can recover upon a bond taken payable to the administrator: Eure v. Eure, 3 Dev. 206:" Rodman, J., in Thompson v. Badham, 70 N. C. 141. Although at common law the administrator de bonis non was not permitted to sue at law on a note given to a former administrator, yet the amount of that note, if collected by such administrator, was held, in Miller v. Alexander, 1 Hill Ch. 25, subject to the demands of the de bonis non administrator.

An emphatic statement of the doctrine of the common law is found in Appeal of American Board of Commissioners for Foreign Missions, 27 Conn. 344, where it is said that the administrator de bonis non takes the specific property of the deceased "as the immediate successor of the deceased, and never as succeeding a prior executor or administrator; for with such prior executor or administrator he has no privity whatever, not even enough to bring suit in his own name on a judgment rendered in the name of such prior executor or administrator." But this is changed in many states, as is indicated by the language of the North Carolina court above quoted, to harmonize with other alterations made in the law regulating the distribution of decedents' estates by administrators de bonis non. Such an administrator is properly substituted where an administratrix dies pendente lite: Lea v. Ilopkins, 7 Pa. St. 385; or he may issue execution upon a judgment in favor of an original administrator for the purchase money of land sold by order of the orphans' court: Meiser v. Eckhart, 19 Pa. St. 201. A promise made to the administratrix, as such, may be sued on by the administrator de bonis non, the proceeds of the action being assets of the estate: Moseley v. Rendell, L. R. Q. B. 338; contra, Ross v. Sutton, 19 Am. Dec. 660. In still other ways is the existence of privity between the original administrator and the adminis trator de bonis non illustrated, as by the case of Duncan v. Watson, 28 Miss. 187. There the admissions of the former were allowed to be given in evidence against the latter, to prove that the note sued on had been properly presented for payment; and it was regarded as plainly necessary that some privity should exist, so far as to charge the estate with such acts as the original representative has legitimately done in the management of the estate. The administrator de bonis non is privy to the original administrator, and the administrator de honis non with the will annexed is privy to the original executor: Taylor v. Bar