As I understand the majority opinion, it was necessary to appoint an administrator *Page 62 in succession before a suit could be maintained against a former administrator for waste or conversion of the assets of the estate in favor of one of the distributees of the estate. This is made manifest by the concluding part of the opinion which holds that Mrs. Graupner, one of the distributees, alone was entitled to recover her share of the proceeds recovered. This was because the debts had been paid by the former administrator, and none of the other distributees had any right to the proceeds except the minor, and he had been settled with.
Under the common law, the extent of the power and authority, as well as the duty of an administrator de bonis non, was simply to collect and administer such property and effects of the deceased, not administered by the former representative, as remained in specie, and were capable of being ascertained and identified as the specific property or estate represented by him. Hence, it has been held that an administrator de bonis non cannot maintain a suit at law, or a bill in chancery, against a former executor or administrator, or his representatives, for effects of the estate wanted or converted by him, though such suit or bill may be brought by creditors, distributees, or legatees. Finn v. Hempstead, Admr., 24 Ark. 111; State v. Rottaken, 34 Ark. 144; Ludlow v. Flournoy, 34 Ark. 451; Williams v. Cubage,36 Ark. 307; and Stewart v. Smiley, 46 Ark. 373.
This rule of the common law has been changed by statute, and an administrator de bonis non or in succession is empowered to call a former administrator to a settlement of his accounts to recover from him for waste and conversion, as well as the assets remaining in specie in his hands; and this I understand to be the effect of the decision in Wilson v. Hinton, 63 Ark. 145, 38 S.W. 338. I do not understand that case to hold that the statute giving an administrator de bonis non the right to maintain an action for waste or conversion took away the rights of distributees or legatees to maintain the action where there were no assets unadministered, and all that *Page 63 remained to be done was to recover a fund alleged to be converted by the original administrator and to pay it to the distributees. If the majority opinion had held that, while the probate records show that there was no real necessity for the appointment of an administrator de bonis non, through the adjudication of the probate court, the necessity by making the appointment is conclusive here because this is a collateral attack, as held in Stewart v. Smiley, 46 Ark. 373, and Lambert v. Tucker, 83 Ark. 416,104 S.W. 131, I would have concurred in the result.
It seems to me that it is fairly inferable from Beckett v. Whittington, 92 Ark. 230, 122 S.W. 633, that the only object of the statute under consideration was to enlarge the powers of the administrator de bonis non or in succession, and that it does not and did not intend to take away the right of distributees or legatees to sue an administrator for waste or conversion where no rights of creditors are involved; and no necessity existed for the appointment of such administrator.
This court has uniformly held that where a fund has been recovered in any court from the original executor or administrator, it shall be paid to the administrator de bonis non as assets of the estate to be accounted for in due course of administration; and in such cases where there would be necessity for the appointment of an administrator in succession, he would have authority to sue for waste or conversion by the administrator in chief.
But where, as here, it can be ascertained from the records of the probate court that the fund is ready for distribution, there is no need for further administration, and the fund may be recovered by the party entitled to it, and it may be distributed in the court where recovered, unincumbered by the costs and delay of administration in the probate court. *Page 64