delivered the opinion of the court.
This was an action on an administration bond against Collier, as security for P. H. Engle, administrator of Jas. Taylor deceased. The breaches assigned were, the non payment of a distributive share of the said estate to Martha Taylor, one of the distributees of said estate; a failure to account for $1000, due on a -bond given to the deceased by Kimwell & Clodfelter, and placed in the hands of an attorney for, collection; a mistake of one hundred dollars in making his annual settlements, and divers other palpable breaches. ‘ On issue joined, the plaintiff submitted to a nonsuit after the refusal of the instructions asked by him, and are given at the instance of the defendant. The plaintiff, having unsuccessfully moved to set aside the nonsuit, has brought the case to this court.
The instructions asked by the plaintiff, are substantially as follows, and grow out of the breaches assigned in the declaration. The first is, that if the administrator neglected to pay a sum, ordered by the
The annual settlements of Engle as administrator and an additional inventory of the estate of the deceased, filed by a former administrator, were given in evidence, and his bond letters of administration and his affidavit, stating who were the heirs and distributees of the deceased. There was no evidence that Kimwell & Clodfelter’s bond was ever in the possession of Engle. It is mentioned in the former administrator’s additional inventory, and from a memorandum thereon endorsed, it appears, that it was placed in the hands of the attorney by the deceased, James Taylor. The record of Engle’s settlements shows, that the amount with which he was charged, consisted of uncollected debts, $3327 60, and by a memorandum on his last settlement, it appears how much he received on Kimwell & Clodfelter’s bond, which was a thou.sand dollars less than the amount due on them, according to the additional inventory of the former administrator.
As to the distributive share of $625, ordered to be paid to Martha Taylor, the non-payment of which is assigned as one of the breaches of the condition of the bond, it may be observed, that the record offered in evidence by the plaintiff, shows *that all the moneys ordered to be distributed amongst the heirs of Jas. Taylor, were paid to their attorney in fact, and his receipt therefor filed amongst the papers of the administration.
Kimwell & Clodfelter’s bond being placed in the hands of the attorney, by Taylor himself, it does not appear how that matter stood at the time Engle took out letters of administration. Whether payments had been previously made is not shown. The documents offered in evidence by the plaintiff, prove, that he acknowledged the receipt of a sum, a thousand dollars less than was due, according to the additional inventory. For the sum received Engle accounted. If there was more due on the bond than was received, or if more was received than was ac
As to the error of $100 in the addition, which caused an increase of Engle’s credits of that amount, the plaintiff cannot complain, as it appears by the last settlement, that the estate is indebted to her in the sum of $150.
The question as to the propriety of this mode of procedure, is not determined, as the cause has been heard on the merits and decided against the plaintiff.
The other judges concurring, the judgment will be affirmed.