Treasurer of Pickaway ex rel. Oulrey v. Hall ( 1827 )

By the Court :

The security in an administration bond is not the proper person to adjust the rights of parties interested in the administration. He can know nothing of,the true state of the accounts, or of the conduct of the administrator, and can not be the most suitable person to litigate or defend them. It is clear, therefore, that it would seem most proper to hold him only responsible where the right of the claimant has been judicially established, either by settlement with the court, or judgment in an action direct against the administrator. We do not thinks the English or New York authorities cited by the plaintiff’s counsel sustain the position he takes; and we consider it much the safer doctrine to require proceedings, first against the administrator himself, and only allow a resort to the surety when nothing is to be contested but the question of payment.

We are equally clear that the plaintiff’s declaration is defective upon the second ground of exception.. Under our law, if the intestate leave a widow and no child, the widow takes the whole personal estate, and thus, as heir, would be entitled to an account for the whole. If the plaintiff claim as heir, he must show how he makes himself so, that his rights may judicially appear to the court, and the proportion of the estate due to him be ascertained.

Judgment for the defendant.