-.This was an action, brought on the bond of James Coalter, executor of James Chapman, for the use of John Smith, guardian of Martha Chapman, one of the infant heirs of James Chapman, on the bond of Coalter, as executor, for the faithful administration of the estate. The breach assigned, is, that the judge of the county court, ordered the sum of seventy-nine dollors and forty-three and three fourths cents, to be paid,-by the executor, to each of the heirs, as their share of the undivided estate of their father; and that this sum has not been paid to the guardian of Martha.
There is no averment, that there had been a final settlement of the estate; or, that a refunding bond had been filed. And, it does not appear, that there had been any efforts, to recover the money from the executor, before, the commencement of this suit.
The judgment in the court below, on general demurrer,' was in favor of the defendants.
It is believed that this judgment can be sustained, on two distinct grounds.
If there has not been a final settlement of the estate, no action can be sustained, on the executor’s *350bond, for the benefit of a distributee, unIoH« «nob dis-tributee lias tendered a su.3ic.ient refundin'»1 bund.'
Again: before writ can be brought, on the bond, assets must be fixed in the hands of the executor; and the inability to make the money out of him, must be established.
It was formerly holder), that, to fix assets in the hands of an executor or administrator, Ibero musí be •a'judgment of devastavit. It is, however believed, that, under our statute’ the order of the judge of the county court, to pay a specific sum to a distributee, is tantamount to a judgment of devastavit; and sufficiently establishes the fact of assets being in his hands.
But, it is not shown, in this case, that the money could not have been made, from the executor.— Execution could have been issued on the order of the judge, for the-specific sum.
If execution had been sued out, and returned nul-la bona, it would have shown the default, of the executor; and the securities might then have been resorted to, on the bond.
The court below, as we conceive, very properly sustained the demurrer.; and the judgment must be affirmed. ' .