The opinion of the Court was delivered by
Kennedy, J.
On the trial of this cause in the court below, several bills of exception were taken by the counsel for the plaintiffs in error, to the opinion of the court, admitting evidence offered by the defendant in error and objected to by the plaintiffs in error, which have been assigned among other matters for error here. We however perceive no error in them. The court below was so obviously right in admitting the evidence, that it requires no reasoning in order to make it more palpable,
The other matters involved in the errors assigned, which seem to be worthy of notice, may be reduced to two questions.
First. Are the commonwealth and her informer entitled to maintain a writ of scire facias upon a judgment had upon an administration bond, to recover the value of the personal estate of the intestate, which came into the hands and possession of the administrators, and to which she has a right by escheat?
Second. If she has a right to maintain a writ of scire facias for such purpose, can she do it without first having her right established by means of an inquest; and if after that, a bond and security be given to her by the administrators to traverse the inquisition, can she maintain such suit before that the inquisition shall be confirmed?
In respect to the first question, it may be premised, that it has never been questioned, but that the next of kin to the intestate might maintain an action on the administration bond against the administrators and their sureties, to recover their respective proportions or purparts of the intestate’s personal estate, which came into the hands of the administrators. Although it was at one time held in England that the creditors of the intestate could not sue and recover upon the administration bond given there, of which ours is a copy, even in the case of a devastavit by the administrator; yet it was ever considered, that the bond was given especially, and at this time exclusively for the benefit of the next of kin or those entitled to have the personal estate of the intestate, which remained after paying his debts and the expenses of the administration. It has however been adjudged since, that in England, as also in this state, that a creditor, in case *484of his being unable to collect his debt of the administrator on account of his having committed a devastavit, may have an action upon the administration bond against the sureties by way of redress. This being the settled law, where there are next of kin, it must be obvious to every one, that where there are none, that the commonwealth comes in lieu of them; and why shall she not be entitled to the same security and the same remedy, having asserted and established her right to the estate by escheat, in the manner prescribed by law, that are given to the next of kin ? I must confess that I am unable to perceive any. The commonwealth in such case may well be considered the ultima hares, and as succeeding to all the rights and all the remedies of the heirs or next of kin in ordinary cases. The application of this principle may perhaps appear more striking in the case of a bastard’s dying intestate, than that of any' other. ‘ According to the common law, which remains unaltered in this particular by statute, he has no heir or next of kin. He is nullius filius, and in England the king is considered to be his heir, ultimus hares. By the civil law a bastard was deemed filius populi; aird here I see no good reason why he may not be denominated filius reipublica, and upon his dying intestate, the commonwealth be looked upon as his next of kin, under our acts of assembly regulating and declaring in what cases the estates of intestates shall escheat. But it has been argued that as the act of the 29th of September. 1787, entitled “an act to declare and regulate escheats,” directs, by the fourth section thereof, a course of proceeding against the party himself directly, in. whose hands or possession the estate shall be found, that that is the only remedy which the commonwealth has or can resort to. This section declares that immediately “upon the finding of the inquisition, the escheator-general [now the auditor-general or his deputy, by the act of the 2d of April 1821, sec. 1] shall issue his writ, directed to the sheriff or coroner of the county, as the case shall require, commanding him to seize, attach and secure the goods and chattels so found to be escheated as aforesaid, in whose hands soever the same shall be found; or if it be found by the said inquest that the said goods and chatters be eloigned, then to seize and attach so much of the goods and chattels of the person or persons who shall have eloigned the same, as shall be equal in value to the goods and chattels which he eloigned, unless the person or persons in whose hands or possession such goods and chattels be found, give bond to the commonwealth, with sufficient security, to appear at the next supreme court [but, since the act of the 2d of April 1821, at the next court of common pleas] thereafter, to traverse the said inquisition, and likewise, in case the same be confirmed, to render to the commonwealth the same goods and chattels found to be in his or her hands; which writ, so to be issued, shall be duly returned to the escheator [now auditor] general, together with an inventory and appraisement of the goods and chattels, if any, which he seized and attached by virtue thereof; and the said sheriff or coroner shall there*485upon sell the same goods and chattels at public auction, after ten days public notice of such sale, and shall, without delay, pay over the moneys therefrom arising, to the treasurer of the commonwealth, &c.” In answer to this, it is sufficient to observe, that although a very summary remedy is given by this act to the commonwealth to obtain possession of the personal estate of which the intestate died possessed, or otherwise an adequate compensation for it in case it should be eloigned, yet there are no words in the act which seem to indicate the slightest intention, upon the part of the legislature, to confine the commonwealth to that course of proceeding alone, or to prevent her from pursuing any other that another party interested in the estate, and having aright to it, would be entitled to select and adopt. The commonwealth being once invested with the right to the estate, the law will afford her, as incident to such right, every remedy provided generally for the recovery of it; whether it be a remedy existing at common law, or be given by statute; and the remedy furnished to the commonwealth in this particular case by the act of assembly, must be considered cumulative, which she may pursue, in proper cases, as often as it is likely to prove effectual, at pleasure.
I come now to the consideration of the second question. It appears to me, that wherever the commonwealth intends to assert her right by escheat to the estate of an intestate, that it must be done by means of an inquest, as directed by the acts of 1787 and 1821 already referred to, and in part recited; and that until her right shall be established by the report of the inquest in her favour, she can maintain no action, nor cause any writ to be issued, for the recovery of the possession of the property. But having established her right of property by an inquest of office found in her favour, she may have all the personal property secured, if not eloigned, or, if found by the inquest to be eloigned, have other property of the party who eloigned it, of equal value, taken in place thereof, by the sheriff or coroner of the county, under a writ to him directed for that purpose, from the deputy of the auditor-general, according to the acts of assembly cited above; or she may commence and prosecute, for the recovery of the same, any action that the next of kin, had there been any, would have been entitled to support. Indeed, I think it is very manifest, from the provisions of these acts, that the legislature, instead of intending to restrict and limit the commonwealth, in her course of proceeding to obtain possession of the gaods and chattels belonging to, or .to recover the debts owing to an intestate who died without heirs or any known kindred, within what is allowed by law to heirs or next of kin where there are such, that they intended to extend it beyond any thing that these latter can claim; for by the eighth section of the act of 1787 it is expressly declared, that after it shall have been found by the inquest, that the intestate died without heirs or any known kindred, the commonwealth shall be entitled to recover for her use, “ by information of debt or action in the nature of *486trover and conversion, or upon the case, for money had and received, as the case may require,” any part of the personal estate of such intestate or moneys owing to him, and not mentioned or included in the inquisition, in the hands or possession of or owing by any person dwelling within the state. Thus enabling the commonwealth, after the inquest of office found in her favour, to demand and recover the goods and chattels belonging to the intestate at the time of his decease, from those in whose possession they may be, and the debts or moneys owing to the deceased from the debtors, whoever they may be; while the next of kin, when there are any, are confined, and compelled to claim every thing of the kind, through and by means of the administrators, without whom the personal estate cannot be collected and secured.
Although the commonwealth, after an inquisition held establishing her right by escheat to the personal property of an intestate, enumerating it specifically, and finding it to be in the hands of administrators, within the year after the decease of the intestate, would seem, according to the letter of the act of 1787, to have a right to seize and take the property immediately out of the hands and possession of the administrators, even before the expiration of the year, the time that is allowed by subsequent acts of assembly, for ascertaining the creditors of the intestate, if there should be any, the amount of their claims, and for paying them off; yet I am inclined to think, that in such case, no writ for seizure of the goods or property can be issued or executed until after the year. It is evident, from the second section of the act of 1787, which, among other things, declares that the “ estate shall escheat to the commonwealth, subject to all legal demands on the same,” that the legislature did not intend to preclude the creditors of the intestate from being paid their claims out of his estate ; but as no mode is provided by this or any of the subsequent acts on the subject of escheat, whereby creditors shall obtain payment of their debts out of the estate of the intestate, nor yet any agent or officer of the commonwealth thereby authorized to make payment to them, of their debts, out of the estate of which their delator died seised or possessed, may it not be fairly presumed, or inferred, that the legislature intended that this should be done by administrators, were there any 1 otherwise, to take the estate out of the hands of the administrators before the expiration of the year, the time allowed in all cases for paying the debts of the deceased debtor before distribution shall be made amongst the next of kin, might prevent creditors from receiving payment of their debts ; and if so, would certainly defeat the intention of the legislature, as it appears to me ; which was, that the commonwealth should only be entitled to claim the surplus of the intestate’s estate, which should remain after payment of all his debts. In cases, however, where no letters of administration have been granted upon the estate of the intestate, 1 do not consider that the commonwealth is bound, after having established her right to the property by the report of an in*487quest, to delay á moment in proceeding to seize upon and take possession of it. For if creditors should become embarrassed in obtaining payment of their debts by it, they must attribute it to their own negligence, in-not having taken out letters of administration, as they had a right to do, before the commonwealth had established her right to the property. Although I incline to entertain this opinion at present, yet 1 do not wish to be understood as being entirely free from doubt in regard to its correctness ; nor, that I shall consider myself bound by it hereafter, in a case where it may become necessary to decide the point; for in this case it does not necessarily arise, as much more than one year elapsed after administration was taken out upon the estate of Henry Doran, before the commonwealth moved1 at all in the business. But still, notwithstanding that greatly more than the year had elapsed, and that the commonwealth was not prevented, on that ground, from proceeding, upon the return of the inquisition in her favour, to issue a writ from the deputy of the auditor-general, directed to the sheriff, commanding him to seize the goods and chattels of the administrators, equal, in value, to the personal estate of the intestate which the inquest found came to their hands and had been" eloigned by them, and to dispose of them for the use of the commonwealth, in the manner prescribed by the act of 1787; I think that the bond given by David Crawford, the surviving administrator, and Mary Mackey, the executrix of James Mackey, the deceased administrator, to the commonwealth, with security, to traverse the inquisition, arrested all further proceeding on the part of the commonwealth, until the traverse thus taken was finally disposed of, and the inquisition confirmed. By this traverse of the inquisition, every fact found by it was denied, and put in issue ; and not merely the fact, as has been alleged, that the administrators had eloigned the estate which came into their hands, but the fact, that the intestate died without heirs, or any known kindred, as well as every other fact found by the inquest, which was material to entitle the commonwealth to the estate of the intestate, was denied, and completely put in issue by the traverse. The traverse of an inquisition, ex vi termini, is a denial of all the facts found by it. This being the case, it follows that the presumption of right, on the part of the commonwealth, which arose from the finding of the inquest, was repelled by the traverse ; and until the inquisition should be confirmed, either upon a trial of the traverse or upon its being dismissed for sufficient cause, the right of the commonwealth to the estate of the intestate could not be said to be established ; nor do I conceive, that according to the terms of the act of 1787, that she had any right to have a writ under that act to seize the property, or that she could maintain an action in any form against the administrators or then-sureties, or any other person whomsoever, for the estate of the intestate, or any part of it, except to prosecute a trial of the traverse, and to have the inquisition confirmed first.
It, however, has been contended, that because an exception was *488taken to the sufficiency of the security given in the bond for -the traverse of the inquisition, it ought to be considered as if no traverse had ever been taken, or existed. But it appears that the bond, with the security, was certified by the deputy himself of the auditor-general, to have been given without any objection being made by him then to the sufficiency of the security. This certificate was made on the back of the inquisition, and was transmitted with it into the prothonotary’s office by the deputy of the auditor-general; and no exception entered or taken to the sufficiency of the security, until-some time, at least one term, three months, afterwards. During this interim, there is no pretence for saying, that the traverse was not regularly and well taken and entered. The administrators had done all that the act required, in order to complete their traverse. Now admitting that the exception to the sufficiency of the security entered after that the bond had been so taken to the commonwealth by the deputy of the auditor-general, and so certified by him to the prothonotary, without any exception at the time, was all regular ; still the traverse must be considered as still pending, until that the sufficiency or insufficiency of the security was decided on by the proper tribunal, and the traverse dismissed, and the inquisition confirmed, for want of sufficient security; or, otherwise, the traverse tried, and the inquisition thereupon confirmed. As I, then, consider that the traverse was regularly and.well taken in this case, for any thing that'appears to the contrary, and as the inquisition has never-been confirmed in any way, the commonwealth was' premature in suing out the writ of scire facias; and cannot maintain this action. But the court below having given a contrary direction to the jury on this point, their judgment must, therefore, be reversed. In all other-respects or matters, I think, that the direction of the court below to the jury, and their answers to the points submitted by the counsel for the plaintiffs in error, were right.
The judgment is reversed.