Opinion
(June Term, 1848.)
Where an administrator dies without having finally administered the estate of his intestate, an action will not lie by one of the next of kin for his share of the estate against his administrator, but must be brought by the administrator de bonis non of the original intestate.
APPEAL from the Superior Court of Law of WASHINGTON, at Spring Term, 1848, Settle, J., presiding.
Heath for plaintiff.
Iredell for defendants.
James Baldwin died in the year _____ intestate, without issue, leaving a widow and one brother, the relator, who were entitled to his personal property. Letters of administration were duly granted to James Bennett, who entered into bond, with the defendants as his sureties. The personal estate of Baldwin was large, and the administrator possessed himself of it, and after paying the debts of his intestate, and the widow her third, had in his hands a considerable sum unadministered. Bennett died, and this action is brought on the administration bond, by the brother, the relator, to recover the money so remaining in the hands of the administrator.
His Honor was of opinion that the relator could not maintain the action, but that it ought to have been brought by the administrator de bonis non. In submission to this opinion the plaintiff took a nonsuit, and, a motion for a new trial being refused, appealed to this Court.
We see no reason to doubt the correctness of the judgment appealed from. Upon the estate of every intestate there must be an administration, in order to its (382) due and proper settlement. The administrator is the personal representative of the deceased, and upon him devolves the duty and responsibility of collecting the assets and paying the debts and making distribution. He alone is recognized as legally entitled to the assets, and to him must the creditors and next of kin look. If he dies before these ends are attained, an administrator de bonis non must be appointed, and to him the like rights, duties and responsibilities attach; and so on, as often as the representative dies without closing his administration, and the action at law to collect the unadministered assets must be brought in the name of the administrator de bonis non, and not in that of the next of kin. Taylor v. Brooks, 20 N.C. 273.
We agree with his Honor, that the relator cannot maintain this action.
PER CURIAM. Judgment affirmed.
Cited: S. v. Baldwin, 33 N.C. 112; S. v. Moore, ib., 162; Duke v. Ferebee, 52 N.C. 11; Latta v. Russ, 53 N.C. 113; Goodman v. Goodman, 72 N.C. 509; Ham v. Kornegay, 85 N.C. 121.
(383)