The question presented by the record in this case is as to the sufficiency of the complaint. The action was brought in the name of the state for the use of the children of Spruce W. McCreary, deceased, against John Roth, R. H. Stanford and Henry Nathan, sureties in the bond of J. F. Vaughan as administrator of said McCreary’s estate. The bond was in the penal sum of $2000, and was executed on the 19th day of February, 1875.
The breach of the condition of the bond assigned was, that upon the examination and confirmation of his final account and settlement, filed in the probate court on the 24th day of July, 1877,' but which was not finally acted upon until the 23d day of April, 1880,' Vaughan' was found indebted to the estate, on account of assets which had come into his hands, in the sum of $2266.25 j and that he had converted the said assets to his own use. The complaint contained no averment that the creditors of the estate had been paid, or that there were no debts; nor did it allege that an order for the payment of distributive shares had ever been made by the probate court.
The defendants interposed an answer to which the plaintiff demurred, but the court conceived that the complaint was insufficient and sustained the demurrer to it and dismissed the action.
1. Rig-hts Df distribuí.and
2. same.
The allegations of the complaint do not establish an interest in the matter in controversy in the parties for whose benefit the action was brought. It is not alleged, as the counsel for these parties assumes, that the administration has been closed, nor is there an allegation that the amount in the administrator’s hands had been adjudged by the probate court to them. The allegation is simply that upon the coming in of the final account of the public administrator, it was adjudged that hé was indebted to the estate in the sum stated. It is immaterial whether this indebtedness arose from a conversion of the assets of the estate or otherwise ; it remains a final judgment against the administrator and fixes the extent of the liabilities of the sureties upon his bond if he refuses or neglects to account for the amount. If he has wasted or converted the assets, his liability becomes a chose in action belonging to those entitled to the estate as creditors, legatees or distributees. State, use Oliver, v. Rottaken, 34 Ark., 144, 150; Baker v. State, 21 Ib., 405. But the claims of creditors are paramount to those of distributees, and it is only when the assets are not needed in the course of administration that the rights of the latter can be asserted. The probate court where the administration is pending is the tribunal to determine who are creditors of the estate and when there, is a sufficiency of assets to satisfy their claims without resort to the particular fund desired by the distributees. Mansf. Dig., sec. 148 et seq.; McDearmon v. Martin, 38 Ark., 261; Wheat v. Moss, 16 Ib., 254-5; Schouler on Exrs. and Admrs., secs. 207, 508.
3. Action on bond.
It is accordingly the law of this state that there can be no devastavit which will sustain an action on an administrator’s bond, until an order of the probate court directing payment of the amount found due upon settlement there to the parties entitled to it, has been violated; and this is true whether the party entitled to the fund be a creditor or a distributee. George v. Elms, 46 Ark., 260; Hall v. Brewer, 40 Ark., 433.
The order of the probate court in this case, according to the allegations of the complaint, settles nothing except the amount of the administrator’s liability.
There is no allegation thát it has ever been adjudged that there is a sufficiency of assets to complete the administration without the fund here sued for, but such adjudication is the crucial test by which the right or title of the distributees is to be determined.
4. Res Judicata: Final judgment on imperfect pleadcata : Fin judgment on ii -feet pie
It is argued that the cause should have been dismissed with-out prejudice. If the essential allegation which is omitted from the complaint in this case is supplied in a second action, the plaintiff’s present failure on demurrer will not be a bar to that action, and the appellants are not, therefore, prejudiced by the judgment any more than if the right to bring the second suit had been expressly reserved. Gould v. E. & C. R. R. Co., 91 U. S., 526.
Affirm.