Ross v. Sutton , 17 S.C.L. 126 ( 1828 )

Nott, J.

delivered the opinion of the Court.

An administrator is the representative of the intestate, for the purpose of administering the goods and effects which belonged to the deceased in his life time ; and the personal estate, ill contemplation of law, belongs to him. An administrator de bo-nis non is intitled only to the goods left unadministered by the first administrator. A sale by an administrator is an administration of the estate pro tanto: the property is changed, and no longer belongs to the estate of the deceased. A promise to pay to an administrator, is a promise to him in his individual capacity, in which he need not intitle himself administrator ; and there is no priority therefore between the debtor of the first administrator and the administrator de bonis non. There can be no doubt but that the first administrator may sue the defendant, as on a promise made to himself. He is also answerable to the administrator de bonis non for all the goods which he may have received of the estate.

The proceedings in this case are not before us ; and therefore we do not know what form of declaration has .been adopted. But the plaintiff must have declared either on a promise to himself, or on a promise to his intestate neither of which was supported by the evidence. The motion for a nonsuit ought therefore to have been granted. Motion granted.