Now it is impossible to make sense out of this part of the section which speaks of the goods, etc., previously administered, unless they are understood in the technical sense de bonis non administratis, and as used in the commission granted to the administrator de bonis non; for if they were to be understood as meaning goods, chattels, rights, and credits, which had been previously and fully administered, as it was contended for by the plaintiff in error's counsel, and that all which were not fully administered must be accounted for to the administrator de bonis non, there could be no such balance from the administration of them in the hands of the dismissed executor or administrator as is there mentioned and directed to be paid over to the

successor.

The plaintiff in error was not entitled to maintain his claim in the court below against the defendants, and the judgment of that court is therefore affirmed.

Judgment affirmed.

ADMINISTRATORS DE BONIS NON ADMINISTRATIS are, as the term signi fies, persons appointed by the court of probate to administer upon the effects of a decedent which have not been included in a former administration. To warrant the appointment of an administrator de bonis non, the administration must be vacant: Rambo v. Wyatt, 32 Ala. 365. In an earlier decision in the same court, Matthews v. Douthitt, 27 Id. 273, it is said: "The doctrine of the common law, in force in this state, is, that when the probate court has granted letters of administration to a person entitled to and capable of dis charging the trust, it can not make any new appointment of administrator of the same estate until the occurrence of one of those events or disabilities which, either temporarily or perpetually, vacates the office; as the death or resignation of the party, the repeal of his authority, etc. If it makes any such new appointment before the occurrence of any one of such events or disabilities, such new appointment is totally void," citing Griffith v. Frazier, 8 Cranch, 9; The Justices v. Selman, 6 Ga. 432. The rule that where the administration is not vacant the probate court can not appoint one to it, is intended for the benefit of the incumbent: Turner v. Wilkins, 56 Ala. 173; and therefore if an administrator accepts letters of administration de bonis non jointly with another, it amounts to a resignation of his former authority: Id. The appointment of a de bonis non administrator is prima facie evidence that the administration was vacant: Warfield v. Brand, 13 Bush, 77. Not only is it essential that there should be no executor or administrator of the estate, but it is also necessary that it should appear to the court that there exists property of the estate unadministered, or unpaid debts, or something remaining to be done, in order to authorize the granting of administration de bonis non: Scott v. Fox, 14 Md. 393; Pinney v. McGregory, 102 Mass. 190. The applicant for letters, however, need but make out a prima facie case of existing assets, for, as is reasoned in the opinion delivered in the above decision from Maryland: "The action of the court is not dependent upon the weight of evidence. If the application be resisted and proof be offered to show that the intestate left no property, it can not avail, unless it be clear and explicit

and above all doubt. It was not designed by the statute that questions of title to personal property should be tried and determined by the orphans' court in a summary proceeding upon an application for letters. Neither the organization of the court, nor their mode of proceeding, enables them satisfactorily to pass upon such a question."

In some states the jurisdiction of the court to issue letters de bonis non is made by statute to depend upon the amount of assets unadministered or of the debts unpaid, as for example, in Massachusetts, where that amount must be twenty dollars or upward: Pinney v. McGregory, 102 Mass. 190. But it is not necessary that the assets should be within the state: Watson v. Collins, Ala. Sel. Cas. 515. The court of the decedent's residence having jurisdiction originally, and the court which had granted the previous administration being the proper court to confer the letters de bonis non: Ex parte Lyons, 2 Leigh, 761. Lapse of time will also be considered in granting the letters; and although the same limitation may not be imposed with respect to the time within which a de bonis non administration will be granted, as is provided in case of an immediate administration, Pinney v. McGregory, supra, yet where application is made on the ground of unpaid debts, the court will refuse the appointment, assuming that all debts have been paid, and the administration closed, if it appear that many years, in this instance twelve, have elapsed since the grant of the original administration: Chandler v. Hudson, 11 Tex. 32; Murphy v. Menard, 14 Id. 62. In construing the statutory limitation prescribed for the grant of administration, the court, in Crossman v. Crary, 37 Iowa, 684, held that the act of their state, by using the word "original," did not extend to an administration de bonis non; that original administration was necessary to give the court jurisdiction, and should be taken out in proper time, but that subsequent grants of letters might be made whenever the settlement and distribution of the estate required it.

Where an administration has not been completed, by reason of the death of an executor intestate, or of an administrator, or of the revocation of their letters, a de bonis non administration should be committed to a proper applicant. And within the meaning of this rule, until there has been a final distribution, at least, the administration is regarded as incomplete: Taylor v. Brooks, 4 Dev. & Bat. Law, 139; Scott v. Fox, 14 Md. 393; Donaldson v. Raborg, 26 Id. 312; Latta v. Russ, 8 Jones, 110. In Smith v. Dennis, 33 Id. 442, an administration de bonis non was granted twenty years after the death of the decedent, whose reversionary interest after a certain life estate had not been administered. But an administration de bonis non will not be per mitted for the sole purpose of making a deed which the original representative neglected to make: Joplin v. Mining and Smelting Co., 9 Rep. 51; Sup. Ct. Mo., Oct. 1879; Grayson v. Weddle, 63 Mo. 523.

In Bacon's Abridgment, vol. 2, p. 385, title Executors and Administrators, is given a concise summary of the instances in which, and the persons to whom the administration de bonis non will be granted. What is there said is adopted in substance by Williams in 1 Executors, 471, and may be regarded as the law where statutes have not worked a change. The language of the Abridgment above referred to is:

“Of an administrator de bonis non, where the first administrator dies, or the executor dies intestate, or without probate of the will, and herein: In what cases administration de bonis non shall be granted, and to whom.

"These kinds of administrations are granted in the following instances: "1. If a person dies intestate, and administration is granted to J. S., who die

without having administered all the intestate's goods; in this case the ordinary must grant administration of the goods unadministered to another, for the first administrator can not continue the trust reposed in him to his executor or administrator, because he has no interest but what he derives from the act of the ordinary.

"2. So if an executor dies intestate, administration de bonis non cum testamento annexo of the testator must be granted by the ordinary, for they are not devolved on the administrator of the intestate, because he had them in autre droit, in order to discharge the trust reposed in him; but if the executor makes his executor, then the trust is devolved on him; and after payment of the debts and legacies of the first testator, he has an absolute property in the goods.

"3. If the executor dies before probate, though he administered in part by disposing of the testator's goods, etc., yet his executor can not be executor to the first testator; but in this case there is not an administration de bonis non administrat granted, but an immediate administration, because the executor died ante onus executionis testamenti se susceptum, which is the foundation the spiritual courts proceed upon."

American adjudications illustrate these principles. Upon the death of an administrator, the goods of the intestate do not go to the executor of the administrator, but pass to the de bonis non administrator of the intestate: Taylor v. Brooks, 4 Dev. & Bat. Law, 139. For between the personal representative of a deceased administrator and the heirs or devisces of the estate he represents, there is no privity, and a de bonis non administration must be taken out to complete the settlement of the estate: Latta v. Russ, 8 Jones, 110; Lansdell v. Winstead, 76 N. C. 366.

The same principle is applied to the case of a deceased sole executor; if he appoints an executor, this latter person is by virtue of his appointment entitled to administer upon the estate of the first testator: Moseley v. Rendell, L. R. Q. B. 338; a doctrine, however, completely abandoned in this country: 3 Redf. on Wills, 221, 222; and no occasion arises for the granting of letters de bonis non. Should an executor die intestate, or omit to nominate an executor, administration de bonis non must be taken out: Alexander v. Stewart, 8 Gill & J. 227; Crafton v. Beal, 1 Ga. 322. The rule and its reason are thus stated in 1 Wms. on Ex. 254, on the authority of English textwriters and decisions: "If there be a sole executor, the executor of such executor is, to all intents and purposes, the executor and representative of the first testator. But if the first executor dies intestate, then his administrator is not such a representative, but an administrator de bonis non of the original testator must be appointed by the court of probate; for the power of an executor is founded upon the special confidence and actual appointment of the deceased; and such executor is therefore allowed to transmit that power to another, in whom he has equal confidence; and so long as the chain of representation is unbroken by any intestacy, the ultimate executor is the representative of every preceding testator. But the administrator of the executor is merely the officer of the court of probate, and has no privity or relation to the original testator, being only commissioned to administer the effects of the intestate executor, and not of the original testator." So much of this rule as makes the executor of the executor the representative of the first estate is abolished by statute in many of the states of the Union, as in the Code of Civil Procedure of California, sec. 1353; Prescott v. Morse, 64 Me. 422. And in such states no difference could arise in regard to an administration de bonis non, whether the prior representation was by an administrator or by an ex

ecutor, or whether such executor died intestate or not. If there are several executors, the right of representation survives, and not even under the English law could any interest of a deceased co-executor be transmitted to his executor: In re Goods of Smith, 3 Curt. Ec. 31.

In illustration of the third of the above divisions made in Bacon's Abridgment, is the case of Wankford v. Wankford, 1 Salk. 299, where it was expressly decided that should an executor before probate of the will enter upon an administration of the estate and die, an immediate administration should be committed, and not an administration de bonis non. For, explained Lord Holt, "the administering is an act in pais, of which the spiritual court can not take notice, and they must commit administration according as it appears to them judicially, and not according to the fact, and yet the acts done by the executor are good."

From this review it follows that where the administration of an estate is made vacant by the death of the administrator or executor, after probate, and in those states where the common law prevails, where the sole executor dies intestate after probate, administration de bonis non, either with or without a will annexed, must be applied for in order to settle the estate; and also vacancy in the administration occasioned by the revocation or renouncing of letters gives rise to that condition of affairs which make a de bonis non representation necessary.

TO WHOM SHOULD LETTERS OF ADMINISTRATION DE BONIS NON BE GRANTED, is a question that formerly was productive of considerable uncertainty. The English rule, relative to the powers of an executor's executor, disposes of one set of circumstances; and the statutory regulations in several of our states, providing what persons are to be preferred in granting administration, obviate in those jurisdictions many of the difficulties which might otherwise arise. Yet, with respect to the general enactment concerning the appointment of administrators, it may happen, as is shown by the case of Kussell v. Hoar, 3 Metc. 187, that it is not applicable to administrators de bonis non. The Massachusetts act gave the judge of probate discretionary powers to grant administration on the death of a sole executor or administrator without having fully administered the estate, "so consequently," said the court, "neither the next of kin nor any other persons have a right to claim the grant of such administration as is provided in respect to an original grant of administration in a previous section of the statute." In the absence of such qualification, however, it is conceived that no cogent reason exists why the statutory preferences pertaining to the appointment of original administrators should not be observed in the issuance of letters de bonis non. And it has been repeatedly decided, in the ecclesiastical courts of England, that in all that regards the obligation of the statutes of administration on the court, in the grant of administration no distinction exists between an original and a de bonis non administration: 1 Wms. on Ex. 475.

The statutes of 31 Edw. III. c. 11, and 21 Hen. VIII. c. 5, the original statutes of administration-acts which have been guides in subsequent enactments on the subject both in England and America—were framed with the view of giving the administration to those most interested in the estate. With this object before their minds, courts, on occasion, have disregarded the letter of the statute in order to comply with its spirit, and have denied letters to the next of kin on the ground that he had no interest in the estate: 1 Wms. Ex. 436. The rule applies equally to cases of administration de bonis non cum testamento annexo, and to those in which the decedent was an intestate. The appointment is usually given on application, to the next

of kin of an intestate; and in determining who are next of kin, the time of the decease is considered. Should all of those who were next of kin be dead, the court is to be guided by the general principle of interest in the estate, in determining to whom to grant administration de bonis non. In 2 Hag. Ec., in appendix, many cases upon the questions are collected at length. On pages 156 and 157, after stating that no distinction existed between first and subsequent grants, it was observed: "The ground of making the de bonis non grant to the representatives of the next of kin at the time of the death, in preference to the next of kin at the time of the grant, is, that the former are possessed of the beneficial interest in the intestate's effects, but that interest under the 22 and 23 Car. II., c. 10, vests in the distributees immediately on the intestate's death, and is consequently transmitted to their representatives, although no administration had been taken out in the life-time of such distributees. Accordingly, while, on the one hand, it is always held in practice that a person who was next of kin at the time of the death is, under the statute of Hen. VIII., entitled to the de bonis non grant in preference to the representative of the original administrator, or to the representative of any other next of kin at the time of the death, it is, on the other hand, the established practice and course of office, that if all who are next of kin at the death are dead, then the representative of such next of kin being entitled to the beneficial interest, is also entitled to the administration, whether original or de bonis non; with this limitation, however, in both cases, that a person originally in distribution is preferred to the representative of the next of kin." These rules, established by early judicial decisions in England, furnish a guide for the courts of those American states whose legislatures have not prescribed other rules. The practice of the ecclesiastical courts of England, requiring that a party applying for letters of administration should cite those having a prior right in order that they may object to the issuance of the letters, is followed in this country, being embodied in statutes providing the notice to be given of the time of the intended application. The rule is enforced in the case where creditors, whose claims might be lost without administration, have asked that representation of their deceased debtor's estate might be granted to them: Fairland v. Percy, L. R., 3 P. & D. 217; S. C., 12 Eng. Rep., Moak's Notes, 678, and in regard to the right of creditors to protect themselves, no distinction appears to have been made between an original and a de bonis non administration.

IT IS THE DUTY OF AN ADMINISTRATOR DE BONIS NON, to give a bond for the faithful performance of his office, and where he takes with a will annexed, the bond should be commensurate with the powers and trusts contained in the will: Commonwealth v. Forney, 3 W. & S. 353; Zeigler v. Sprenkle, 7 Id. 175; Hartzell v. Commonwealth, 42 Pa. St. 453; Shalter's Appeal, 43 Id. S3; and the bond should disclose the special character of the administration: Small v. Commonwealth, 8 Id. 101; Hartzell v. Commonwealth, supra. He must take possession of the effects of the estate to which he is entitled, return an inventory, Wilson v. Keller, 2 Chip. 16; Alexander v. Stewart, 8 Gill & J. 226, and distribute to persons entitled: Id. In fact, his duties are very little different from those of an executor or administrator: Conklin v. Egerton, 21 Wend. 430.

POWERS OF ADMINISTRATOR DE BONIS NON.-One of the first questions which commands the attention of the administrator de bonis non is, what are the assets which he ought to possess himself of for the purpose of distribution among those entitled thereto. The rule of the principal case is that he can take only those articles which have remained in specie since the death of him whose estate he represents, and that he can not compel the prior executor or