from him to the estate, it is a breach of the bond for which an action will lie after proper proceedings to fix the principal, or, in some cases, without such proceedings: State v. Rogers, 1 Houst. 569; Lane v. State, 27 Ind. 108; Suc cession of Johnston, 1 La. Ann. 75; State v. Bartlett, 68 Mo. 681; Beall v. Territory, 1 N. M. 507; Harrison v. Clark, 87 N. Y. 572; Neal v. Becknell, 85 N. C. 299; Franklin Co. v. McIlvain, 5 Ohio, 200; O'Connor v. State, 18 Id. 225; Martel v. Martel, 17 Tex. 361; Baldwin v. Dearborn, 21 Id. 446; Boulware v. Hendricks, 23 Id. 667. So in O'Gorman v. Lindeke, 26 Minn. 93, an omission by an administrator to pay into court the amount found due on an accounting was held to be a breach for which an action would lie on his bond. But the contrary was held in Willson v. Hernandez, 5 Cal. 437, in case of a refusal by an administrator who had resigned, to pay into court, in accordance with its order, a balance found due from him, on the ground that the order was coram non judice, because the court could not constitute itself the financial agent of the estate.

6. Other Breaches.-Disobedience of a void judgment or decree is no breach of an administration bond: Dickerson v. Robinson, 6 N. J. L. 195; Hancock v. Hubbard, 19 Pick. 167; Willson v. Hernandez, 5 Cal. 437; as where the probate court made a decree that the share of an heir who was indebted to the estate should be paid to the other heirs: Ilancock v. Hubbard, supra. Generally, acts of non-feasance, as well as acts of misfeasance, are breaches of the administration bond, as where the administrator neglects to collect assets: Beall v. Territory, 1 N. M. 507.

REMEDY ON BOND, AND STATUTES AFFECTING REMEDY.-As a general rule, the only remedy for a breach of an administration bond is by an action at law thereon: Teague v. Dendy, 16 Am. Dec. 643; Hagthorp v. Hook, 1 Gill & J. 270; Boston v. Boylston, 4 Mass. 318; Buckingham v. Owen, Smed. & M. 502; Smith v. Everett, 50 Miss. 575. The probate court has no jurisdiction to decree against the sureties on such a bond unless the statute expressly authorizes it: Schnell v. Schroder, 1 Bailey Eq. 334; Ordinary v. Bonner, 2 Hill Ch. 468; Maguire's Estate, 12 Phil. 12. Nor is a bill in equity ordinarily maintainable: Teague v. Dendy, supra; Buckingham v. Owen, supra; Smith v. Ev erett, supra. But there are exceptions to the rule. In Moore v. Waller, 1 A. K. Marsh. 488, it is held that a court of equity has jurisdiction of suits on administration bonds, notwithstanding a statute giving a remedy at law. So in Indiana under the statute of 1843, a suit in equity on an administration bond for waste was decided to be maintainable: Anthony v. Negley, 2 Ind. 211. And in a number of cases it is held that where an administrator dies, before his liability is fixed by judgment, order, or decree, leaving no personal representative within the jurisdiction, a suit in equity will lie against his sureties for a waste or conversion of assets: Moore v. Armstrong, 9 Port. 697; Carrol v. Connet, 2 J. J. Marsh. 195; Carow v. Mowatt, 2 Edw. Ch. 57; Haines v. Meyer, 25 Hun, 414; Spottswood v. Dandridge, 4 Munf. 289. And where an administrator who has given two bonds is guilty of a devastavit and becomes insolvent, a suit in equity is maintainable, as heretofore stated, against both sets of sureties to establish the amount and date of the acts of waste, in order to ascertain their respective liabilities: Alexander v. Mercer, 7 Ga. 549. So a court of equity may adjudicate on a joint administration bond coming incidentally before it, and refer the matter to a master to ascer tain the respective liabilities of the parties for a devastavit: Knox v. Picket, 4 Desau. 92, 199. A statute prescribing penalties against an administrator for not accounting is not exclusive, and does not preclude an action on his bond: Beall v. Territory, 1 N. M. 507. Statutes prescribing the mode of

proceeding on administration bonds may apply to bonds previously executed, because they relate only to the remedy, and are therefore not unconstitutional as impairing the obligation of contracts: Johnson v. Koockogey, 23 Ga. 183; as where a statute gives a right of action on such a bond to an administrator de bonis non: Graham v. State, 7 Ind. 470; Rairden v. Holden, 15 Ohio St. 207. LIABILITY OF EXECUTOR OR ADMINISTRATOR MUST BE FIXED BEFORE ACTION ON BOND.-It is undoubtedly the general rule that before an action can be maintained upon the bond of an executor or administrator for a breach thereof, the default constituting the breach and the consequent personal liability of the principal must be first established by appropriate proceedings against such principal. Therefore, where the breach assigned is a failure to account, the administrator or executor must ordinarily be cited to account before the default is fixed, so as to maintain an action on the bond: Judge of Madison County Court v. Looney, 2 Stew. & P. 70; Potter v. Cummings, 18 Me. 55; Gilbert v. Duncan, 65 Id. 469; People v. Corlies, 1 Sandf. 228. But where a testamentary trustee fails to render an annual account as required by law, no order to account is necessary before suing on his bond: Prindle v. Holcomb, 45 Conn. 111. The statute is a sufficient order. Where the breach consists of the non-payment of a debt or claim against the estate, as the sureties on an administration bond are not guarantors, but are liable only in case the debt is a proper claim against the estate, and the principal has received sufficient assets to pay it, and has wasted or converted them, or refuses to apply them in payment-which amounts to the same thing-no action is maintainable against the sureties unless the amount of the debt, the liability of the estate therefor, the sufficiency of the assets, the fact of waste or conversion, and the consequent personal liability of the principal has been first established by the judgment or decree of a competent court in a proper proceeding against such principal duly prosecuted. There must therefore be, generally, in the absence of a statute dispensing with it, at least a judgment or decree against the administrator, or executor de bonis intestatis, or de bonis testatoris, establishing the amount of the debt and the sufficiency of the assets: 1 Wms. on Ex'rs, 6th Am. ed., 598, note; Thompson v. Bondurant, 50 Am. Dec. 136; Cameron v. Justices, 44 Id. 636; Faulk v. Judge, 2 Port. 538; Thomson v. Searcy, 6 Id. 403; May v. Kelly, 61 Ala. 489; Territory v. Redding, 1 Fla. 242; Justices v. Sloan, 7 Ga. 31; Henderson v. Levy, 52 Id. 35; Biggs v. Postlewait, Breese, 154 (Beecher's ed. 198); Eaton v. Benefield, 2 Blackf. 52; Hobbs v. Middleton, 1 J. J. Marsh, 180, 181; Lee v. Waller, 3 Metc. (Ky.) 61; Phelps v. Sawyer, 7 La. Ann. 551; Lobit v. Castille, 13 Id. 563; Williams v. Cushing, 34 Me. 370; Robbins v. Hayward, 16 Mass. 524; Dinkins v. Bailey, 23 Miss. 284; Jones v. Irvine, Id. 361; Matter of Webster, 5 N.J. Eq. (1 Halst.) 89; State v. Cutting, 2 Ohio St. 1; Douglas v. Day, 28 Id. 175; Everett v. Waymire, 30 Id. 308; Commonwealth v. Evans, 1 Watts, 437; Commonwealth v. Fretz, 4 Pa. St. 344, 346; Commonwealth v. Moltz, ante, p. 499; Commonwealth v. Dill, 1 Phil. 556; Jones v. Anderson, 4 McCord, 113; Ordinary v. Hunt, 1 McMull. 382; Burnett v. Harwell, 3 Leigh, 89.

But in some of the states it has been held that a prior judgment against an administrator or executor, in his representative capacity, was not a necessary preliminary to a suit on his bond: Oldham v. Trimble, 15 Mo. 225; Washington v. Hunt, 1 Dev. L. 475. Especially where judgment has been recovered against the testator or intestate, and revived against his personal representative: Lewis v. Fagan, 2 Id. 298; State v. Murphy, 7 Jones, 242. It is generally said, as in the principal case, that in order to maintain an action on an administration bond for non-payment of a debt, there must be a judgment or

AM. DEO. VOL. LI-34

decree establishing a devastavit against the principal: Commonwealth v. Evans, 1 Watts, 437; Commonwealth v. Fretz, 4 Pa. St. 344, 346. See also Cameron v. Justices, 44 Am. Dec. 636. But it is not exactly clear as to what is essential to fix an administrator or executor for a devastavit, so as to maintain a suit on the bond. The better opinion would seem to be, that there must be at least a judgment or decree against the administrator or executor de bonis intestatis or de bonis testatoris, and a return of nulla bona: Thompson v. Bondurant, 50 Id. 136; Hobbs v. Middleton, 1 J. J. Marsh. 180, 181. And in such a case, a return that the "defendant has no property upon which to levy," is insufficient, because it does not show that he has not sufficient property of the estate: Beasley v. Mott, 11 Rich. 354. But in some cases it is held that a return of nulla bona is unnecessary: Ward v. Yonge, 5 Ala. 474; Jeeter v. Durham, 6 J. J. Marsh. 228; McCalla's Adm'r v. Patterson, 18 B. Mon. 201. So in Alabama it was held that even an issuance of the execution on the judgment or decree was not essential, in Burke v. Adkins, 2 Port. 236. In his learned note to Wheatley v. Lane, 1 Saund. 219, Mr. Sergeant Williams, after describing the various methods by which an executor or administrator was rendered personally liable for a debt, in the courts of king's bench and common pleas, says that the most usual mode was to obtain a judgment against the administrator or executor de bonis intestatis or de bonis testatoris with a return of nulla bona, and then to bring debt on that judgment suggesting a devastavit. In accordance with this doctrine, it was held, in some early cases in Virginia and other states, that there must be three suits brought in order to reach the sureties in an administration bond and render them liable for a debt of the estate: 1. A suit against the executor or administrator in his representative capacity, with a judgment de bonis testatoris or de bonis intestatis, and a return of nulla bona on an execution issued thereon; 2. An action of debt on that judgment suggesting a devastavit, against the executor or administrator personally, and a judgment de bonis propriis; and, 3. An action on the bond founded upon that judgment: Brandt on Suretyship, sec. 494; Braxton v. Winslow, 1 Wash. 31; Gordon's Adm'rs v. Justices, 1 Munf. 1; Catlett v. Carter's Ex'rs, 2 Id. 24; Hairston v. Hughes, 3 Id. 568; Carow v. Mowatt, 2 Edw. Ch. 57; Stewart v. Chapline, 4 Ohio, 98; Justices v. Sloan, 7 Ga. 31, 38. But the second of these actions was dispensed with by the statute of 1813, in Virginia, and by the statute of 1820, in Georgia: Bush v. Beale, 1 Gratt. 229; Justices v. Sloan, 7 Ga. 31.

In other states this second action has been held unnecessary before suing on the bond: Thomson v. Searcy, 6 Port. 403; Dean v. Portis, 11 Ala. 104; Hobbs v. Middleton, 1 J. J. Marsh. 189, overruling Clarke v. Commonwealth, 5 T. B. Mon. 99; Clarkson v. Commonwealth, 2 J. J. Marsh. 19. See also People v. Dunlap, 13 Johns. 437; Hazen v. Durling, 2 N. J. Eq. (1 Green), 133. So in Mississsippi, under the statute, after a judgment against an administrator as such, and a return of nulla bona, a second action against him suggesting a devastavit is not required before suing on the bond: Dobbins v. Halfacre, 52 Miss. 561. So under the Massachusetts statute, it is sufficient to show a judgment against the executor or administrator, and a neglect to pay the same, or to turn out sufficient goods of the estate to satisfy it: Mass. Gen. Stat., c. 101, sec. 19.

In Illinois, since Biggs v. Postlewait, Breese, 154 (Beecher's ed. 198), a statute has been passed dispensing with the necessity of establishing a devastavit before suing on an administration bond: Tucker v. People, 87 Ill. 76. Even where, after a judgment against an administrator as such, and a return of nulla bona, a second action against him suggesting a devastavit was re

quired, before suit on the bond, it was not necessary to maintain the suit on the bond as against the administrator himself: Meade v. Brooking, 3 Munf. 548.

In South Carolina it has been held, that after a judgment against an admin. istrator in his representative capacity, and a return of nulla bona, the creditor, before suing on the bond, must either bring an action of debt against the administrator suggesting a devastavit, or cite him to account and establish a devastavit in the orphans' court: Lining v. Giles' Ex'r, 3 Brev. 530. But where, after such judgment and return, it is established by proceedings in equity, to which the administrator is a party, that he has received sufficient assets, but has applied them to debts of an inferior degree, an action will lie on the bond: Ordinary v. Hunt, 1 McMull. 380.

Under a statute in Arkansas, it was decided that a judgment against an administrator as such, with a return of nulla bona, was not sufficient to support an action on his bond, but that the judgment must be allowed, classified, and ordered paid by the probate court: Outlaw v. Yell, 5 Ark. 468; Porter v. State, 9 Id. 226; State v. Ritter, Id. 244; Gordon v. State, 11 Id. 12. But in Illinois, a creditor having a judgment against the estate can sue on the administator's bond for a devastavit, though the claim has never been presented or allowed: People v. Allen, 8 Brad. App. (Ill.) 17.

Statutes requiring claims against decedents' estates to be allowed and ordered paid by the probate court are, in general, substitutes for the commonlaw method of fixing the personal liability of the administrator or executor, and such allowance and order must be obtained before suit on the adminis tration bond: State v. Stafford, 73 Mo. 658; First National Bank v. How, 28 Minn. 150; Probate Court v. Kent, 49 Vt. 380; Hood v. Hood, 85 N. Y. 561. And non-compliance with the order of payment is sufficient to maintain an action on the bond, without any prior judgment establishing a devastavit: Weber v. North, 51 Iowa, 375; Warren v. Powers, 5 Conn. 373; Brewster v. Balch, 9 Jones & S. 63. Under the New York statute, when the plaintiff in an action on an administration bond proves an order or decree of the surrogate's court, for the payment of his claim, together with facts showing it within the jurisdiction of the court, omission to perform the decree, a certificate of the surrogate under the decree duly docketed, execution issued and returned nulla bona, and the bond duly assigned, a prima facie case is made out entitling him to a verdict under the direction of the court: Mundorff v. Wangler, 12 Id. 495. But the facts necessary to give the court jurisdiction. to make the order must be shown: Behrle v. Sherman, 10 Bosw. 292. An order of distribution in the probate court, under the Tennessee code, operates as a judgment in favor of the creditors, and any creditor may, after ten days' notice, have execution for his debt, which, if returned nulla bona, entitles him to judgment against the sureties on the administration bond, without notice: Cooper v. Burton, 7 Baxt. 406. Under the Oregon statute, where a claim has been allowed by the administrator, no action will lie on the administration bond for its non-payment until proper steps have been taken in the probate court for its payment without avail: Hamlin v. Kinney, 2 Or. 91. Even in those states in which it is the general rule that a prior proceeding fixing the administrator or executor personally is necessary before suing on his bond for non-payment of a debt, the rule is not universal. Thus where the administrator dies leaving no personal representative within the state, it is held that a suit may be maintained in equity upon his bond, without previ. ously fixing his liability at law: Moore v. Armstrong, 9 Port. 697; Carow v. Mowatt, 2 Edw. Ch. 57. So where his estate is shown to be insolvent by a

tableau of distribution filed in due course of administration: Lynch's Succession, 14 La. Ann. 235. So where he is insolvent, though not deceased, an attachment may be awarded by the chancellor against his sureties, though no judgment has been obtained against him, where it appears that he has received sufficient assets: Farrow v. Barker, 3 B. Mon. 217. So especially where two bonds have been given, a suit in equity will lie without a prior judgment against the insolvent administrator to determine their respective liabilites for a devastavit: Alexander v. Mercer, 7 Ga. 549. But where an administrator dies insolvent, it is held, in Pickett v. Gilmer, 32 La. Ann. 991, that his insolvency must be established by judicial proceedings before suing on his bond. Under the Georgia code, a prior judgment against an administrator establishing a devastavit is not essential to enable a creditor to sue on his bond, where the administrator has absconded: Henderson v. Levy, 52 Ga. 35. Under the statutes of Massachusetts, a suit on an administration bond may, it seems, be authorized by the probate court at the instance of any person aggrieved by any act of maladministration, without any prior adjudication of the default: See Mass. Gen. Stat., c. 101, sec. 21. So in New Jersey, it is held that a general creditor who has not obtained judgment is a "party aggrieved," upon whose application a forfeited bond may be ordered by the probate court to be put in suit if a prima facie case of indebtedness and forfeiture of the bond is shown: Matter of Honnass, 14 N. J. Eq. (1 McCart.) 493.

Where a creditor has judgment against an administrator he may sue on ́the administration bond, under the Mississippi statute, without waiting for a final settlement of the estate: Dobbins v. Halfacre, 52 Miss. 561. And a creditor who has obtained a judgment against an administrator de bonis non may sue on the bond of the prior administrator: Pilcher v. Drennan, 51 Id. 873. In case of a joint administration bond by two administrators, a judgment against one, with a return nulla bona, is not evidence of a joint devas. tavit: Cameron v. Justices, 44 Am. Dec. 636.

The non-payment of a legacy or distributive share of an estate affords no ground of action on an executor's or administrator's bond, as a general rule, until there has been a judgment or decree therefor: Judge of Madison Co. Court v. Looney, 2 Stew. & P. 70; Limestone Co. Court v. Coalter, 3 Id. 348; Pickett v. Gilmer, 32 La. Ann. 991; Thornton v. Glover, 25 Miss. 132; Dobbins v. Halfacre, 52 Id. 561; Judge of Probate v. Adams, 49 N. H. 150; Treasurer v. Hall, 3 Ohio, 225; Dawson v. Dawson, 25 Ohio St. 443; Douglas v. Day, 28 Id. 175; Commonwealth v. Wenrick, 8 Watts, 159; Municipal Court v. Henry, 11 R. I. 563; Ordinary v. Pettus, 11 Rich. 543; Mackey v. Coxe, 18 How. 100; Canterbury v. Tapper, 8 Barn. & Cress. 151; S. C., 2 Myl. & R. 136. But in Williams v. Hicks, 1 Murph. 437, and Chairman v. Moore, 2 Id. 22, it is held that the next of kin may sue on an administration bond without any prior proceeding against the administrator, and notwithstand. ing the fact that there has been no settlement. So it is held in Rowland v. Isaacs, 15 Conn. 115, that it is no defense to an action on such a bond, by or on behalf of the distributees, that there has been no order of distribution, be cause it is the duty of the administrator to apply for the order. Nor is any request by the distributees to the executor or administrator to apply for such order necessary: Davenport v. Richards, 16 Conn. 310. Where an executor dies and has no personal representative, a legatee may, without a previous suit against him convicting him of a devastavit, maintain a bill in equity against his sureties, convening all the parties interested, to establish a misapplication of assets: Spottswood v. Dandridge, 4 Munf. 289. So where an executor absconds or conceals himself, a legatee may maintain an action on