Marsh v. Bennett

Per curiam.

The plaintiff filed a bill in chancery against the defendant, setting forth that the. defendant was administrator of one Swing, in Madison county, in this state; that the plaintiff was his security in the administration bond; that the plaintiff was the purchaser of property at the administrator’s sale — gave his note for the purchase money — was sued, and judgment recovered against him for a balance due thereon, and the money about being made on execution against .him.

The bill further states, that the plaintiff has been informed, and believes, that the defendant had recently become insolvent, and that he (the plaintiff) had written to the judge of probate of Madison county to require said administrator to give counter security, which the bill states “has not yet been done, as he believes.”

These are the facts stated and charged in the bill. The plaintiff suggests that he is in danger of being subject to pay the debt he owes twice — first, as debtor to the administrator — and, secondly, as security on the administration bond.

The bill does not charge the defendant with fraud, or a misapplication of the assets of the estate; but prays an injunction— which was granted.

To this bill there was a general demurrer; which was sustained and the bill dismissed. We consider that there is no equity in the bill. There is no fraud charged, nor any misapplication of the assets of the estate. The defendant’s insolvency, if it really exists, does not necessarily imply inability to comply with his duty as an administrator. A man may be insolvent without being dishonest. The plaintiff has ample remedy in the probate court, by ruling the administrator to further security, and by procuring a revocation of his letters of administration.

The decree is affirmed.