This suit is brought to recover a legacy on an administration bond, given by an administrator de bonis non cum testamento annexo. The plaintiff, the legatee, gave in evidence an administration bond as in case of intestacy, for the conditions are in all respects the same as in an ordinary bond given by an administrator. This precise point is ruled in Fulcher v. The Commonwealth for the use of Beale, 3 J. J. Marshall, 592. In that case it iso decided, that if an administrator with the will annexed, has not entered into such bond as his character required, but executes a bond with such conditions as are required in ordinary administration bonds, he and his sureties are not liable on such bond for a legacy. The case is identical with the present; and it is difficult to understand how the decree could have been otherwise. But it is said the bond is not void, but may be enforced as a voluntary bond. And this may be true; but yet it does not vary the question, because still the objection remains, that no one condition of the bond embraces the case of a legacy, and the parties can only be liable for breach of its conditions. Indeed, the bond is executed on the supposition that there is no will; for it is part of the conditions of the bond, if any will is thereafter discovered and proved in the register’s office, the administrator being thereto required, shall deliver up the letters of administration. It is one thing for sureties to enter into an administration bond, cum testamento annexo, another and quite a different thing to bind themselves in a bond as in case of an intestacy.
Judgment reversed, and judgment for the defendant.