The objection made in this Court, that' the action cannot be maintained by the administrator de bomsnon with the will annеxed of Richard Crabtree, and should have-been brought on the relation of the devisees, is-not tеnable.
In respect to the
personal
estate,- it. is settled,..that if an administrator die before he has completed the settlеment of the-estate, by paying debts and making, distribution, an administrator
de bonis non
must be appointed for the purрose of completing the settlement, for the reason, that there-is no privity between, the distributees of the intestate and the personal'representative of the deceased administrator, and, .consequently;., both of the deceased persons must be
represented';-Duke
v.
Ferribee,
The statute which authorisеs- tile-sale-of real' estate -on tile-petition of an executor or. administrator-for the.- payment of’ debts, makes the proceeds-of sale. assets-for tbe.- payment of' debts,.аnd directs that the-excess-shall.be paid.by the-execm tor or administrator to such, persons- as-would, be-entitled to the-land bad it not been-sold; Rev..Code, ch. 46, sec. 50, 51. Thus putting the excess of the sаle - of real estate on the same footing, in respect to the devisees and heirs, and imposing on executors and administrators-the same duties in regard thereto, as existed,in relation tо.the rights, of legatees and distributees to the excess of the personal,estate,-.and. the dutiеs.-of executors and, administrators-in regard thereto».
When, therefore, an-administrator dies befоre-lie*has-completed the settlement of the- assets, derived, from real estate, by pаying debts and payin-gqover the- excess to the devisees or heirs-at-law, this unfinished,duty cannot be performed by bis administrator, for there-is no privity between him and the devisees and lieirs-.at-law, and it is, consequently, necessary that both of tbe deceased persons should be represented, so, *114 tbаt the representative of the administrator should pay over tbe fund to the representative of the first intestate, whose duty it is made, to complete the administration by paying off all the debts, and paying over the excess to such persons as would be entitled to the laud, had it not been sоld. In other words, between the administrator d^e bonis non of the first intestate ,-and his creditors and devisees, or heirs, thеre is a privity ; whereas, there is no privity between the latter and the administrator of the first administrator. So, the action is properly brought on the relation of the representative of the testator, Richard Crabtree, and it is his duty to receive the fund and •complete the settlement of the estate.
We do not concur with his Honor, in the view taken by him of the question reserved, in respeсt to the effect of the decree, giving the administratrix license to sell the land. That decree was an adjudication that it was necessary to sell, and is conclusive in favor of the title acquired by the purсhaser, but it is not conclusive of the question of debt or no debt, as against, or in favor of creditоrs, or as against, or in favor of the heirs. It is certainly not so in respect to creditors, becаuse they are not parties to the proceeding, and is, consequently, not so in respeсt to the heirs or devisees; for an estoppel must be mutual. To make it so, would be going beyond the necessity of the ease, the object being simply to establish prima facie, that the personal estatе is not sufficient to pay the debts, as a foundation, for the action of the court, in granting a licеnse to sell the real estate, the proceeds of which are made assets, to be аccounted for in the settlement of the estate, when the executor or administrator must, as а matter of course, discharge himself, by the production of proper vouchers.
We think it clear, therefore, that in mаking the settlement in this case, it was the duty of the Court to go behind the decree allowing the administratrix license to sell; and it is likewise clear, that her charges, for the support of the minor children, of the testator, were not proper vouchers. They were not debts of the testator, and are directed to be paid out of the rents, issues, and profits of the land. The fund raised by such *115 rents, issues and profits, uр to the time of the sale, are not charges against the administratrix, and "neither of these matters should have been brought into the settlement, either as items of charge or discharge.
Whether the minor children will not be entitled to the interest of the fund, received by the plaintiff as excess of the proceeds of the sale of the land, the profits of which are ■devoted by the will for their suрport, is a question that will arise when he is required to make distribution, but is not now presented.
The judgment of thе Court below will be reversed, and judgment entered for the sum of $882.22, with interest, according to the case agreed.
Judgment reversed.