Wilson v. Keeler , 2 D. Chip. 16 ( 1824 )

Aikens J.

delivered the opinion of the Court.

The question for the decision of the Court is the sufficiency of the defendant’s plea in bar. It appears by the pleadings that Kee-ler was appointed administrator de bonis non of the goods and estate of Charles McNiel deceased, on the third day of February, 1818, and that the bond on which the present suit was brought was dated the same day. By the condition of the bond, Keeler was bound to make and return an inventory of the goods and estate not administered by the first Tuesday of May, 1818, and to render an account of his administration by the first Tuesday of February, 1819. The plea does not aver a performance of either of these conditions. And the want of personal estate is no excuse for not returning an inventory of the real estate which it is admitted came into tbe bands of Keeler as administrator. Real estate be-mg by statute subjected to the payment of debts in the hands of the administrator, it is material that he should inventory it: and . . • . . J the iact that it was inventoried, by a former administrator, cannot excuse the succeeding administrator. The inventory by the first ... . ° . J J administrator is no evidence that the property came into the hands of the administrator de bonis non; for it may have been sold, and the avails administered or wasted by the first administrator, and he cannot be permitted to resort to that as a shield, which he would not be bound to recognise as evidence against him.

It has been already decided by this Court in the case of Matthews Judge of Probate v. Page and Henshaw, (Bray. 106) that the neglect of an administrator to render an account of his administration is a broach of the condition of his bond, for which a creditor may prosecute. Indeed this is the case with every neglect of duty which materially affects the right of creditors. And no duty of an anministrator more materially affects the creditor than a return of the inventory and a settlement of the administrator’s account; for when fairly rendered they are conclusive upon him.

The subsequent settlement with the Probate Court on the 18th of November, 1823, being after the liability incurred, and after action brought, and judgment therein by nil dicit for the penalty, cannot avail the defendants in bar. The plea in bar is therefore insufficient, and

Judgment musí be rendered for the plaintiffs.