State ex rel. Blanton's Adm'r v. Hunter

15 Mo. 490 | Mo. | 1852

Scott, J.,

delivered the opinion of the court.

This was an action by E. Stanton, administrator de bonis non of Joel Blanton, deceased, against Isaac Blanton, former administrator of said Joel Blanton and his securities, on their bond. The main breach alleged is, that while said Isaac Blanton was administrator as aforesaid, he received the sum of $895 as assets, and that bis letters were subsequently revoked, and that he failed to account for said sum, but converted it to his own use. A demurrer to this declaration being sustained, the case was brought here by writ of error.

It is obvious that the principle of the common law, which entitled an ■administrator de bonis non, to those goods only which remained in specie, and not administered on by the first administrator, is abolished by the system of administration introduced in this State. If an administrator de bonis non, could not sue on the bond of the former administrator, our administration law, so far as it respects the payment of debts and distributions, would be entirely overthrown. How could there be an apportionment of the assets among creditors in the same degree, if one creditor was allowed to sue on the bond of the first administrator and recover his entire debt? The view of the court below, that an administrator de bonis non could not sue on the bond of a former administrator, was clearly erroneous. When there are debts to pay, he would seem to be the only person that could sue. This question has been formerly determined by this court. State, to the use of Darland, vs. Porter et al. 9 Mo. Rep. 356.

The other judges concurring, the judgment of the court below will be reversed and the cause remanded.