This isa judgment by default with a writ of inquiry. The only, question in the case is whether or not the petition states facts which constitute a cause of action against Brinson and his wife in favor of the wards of the plaintiffs below.
It is alleged that Brinson and wife have received from the estate of her father three negroes and a horse, valued at $1600; that her share of her father’s estate is $880 12; that the said estate has been settled and closed, and the administrator thereof has been discharged, leaving in their hands property of the value of $719 88-100 more than her share. These facts are sufficient to establish their liability to account to some one for this surplus thus retained and held by them.
It is also alleged that they promised to pay to the wards of plaintiffs the amount of this surplus, and that they have failed so to do. This formal allegation of a promise may be intended to express the implied promise which arises upon the facts which constitute the liability of Brinson and wife, and the right of said wards. It is supported by further stating said wards are the minor heirs of the said estate; that all the other heirs have fully received their shares ; that they have received only $646 46-100, which is much less than their portions, and that the five minor children of said John McNairy, deceased, are the only persons who are injured by the failure to return or account for this surplus property so received by Brinson and wife as distributees of said estate. ■ Had it been stated that the distributive portion of each heir of said estate was $880 12-100, the ■ facts which constitute the plaintiff’s right would have been fully expressed. This fact, however, appears by necessary legal intendment, by its being stated that the distributive portion of Mrs. Brinson, as one of the children of said John McHairy, is $880 12 ; the law making no difference in the distributive portions of different children of the deceased; and this not being a case in which any difference could be produced by descent or distribution to half-bloods.
If husband and wife receive in some informal distribution, not sanctioned by the judgment of the County Court on final distribu*764tion, or by the legal assent of the other heirs, an amount of property greater than her share of the estate, and retain it in such capacity as her share until the administration upon the estate is closed, they may be jointly sued and compelled to account for such surplus by those co-distributees who have not received their shares of such estate. That is the case which is substantially presented in this petition. It is somewhat inartificially stated, and it is confused, by being blended with a bond given by Brinson and others in relation to two of the slaves last received. Though this bond is set out in the petition, it does not vitiate the cause of action otherwise well stated. Because it does not appear under what circumstances said bond was given; and, further, the parties to this bond, the sureties, who might complain of the judgment by default, do not join in the petition for writ of error.
A good cause of action having been stated against Brinson and wife, and the other parties not complaining, we cannot say that there is error in the judgment.
Judgment affirmed.