delivered the opinion of the court.
This suit is brought to recover the price of a lot of ground, purchased by Goodwin Davis, at the sale of the estate of Jacob Smith, and for the payment of which, Thomas Webb had obligated himself as surety. The defendants, among divers matters of defence set up in their answer, but not attempted to be made out on the trial, pleaded that plaintiff could not recover as administrator, because the estate of Jacob Smith was a vacant estate, .and could be represented only by a curator; that said vacant succession was under the management of a curator at the time, and more than three months after the plaintiff’s public appointment as administrator ; that the estate of Jacob Smith had been taken from the custody and control of plaintiff, by an order of the Court of Probates, and delivered up to certain individuals claiming to be the heirs of the deceased ; that if plaintiff had ever been legally appointed administrator, he was without power to sue, or do any other act in the said capacity, having rendered his accounts as such. There was judgment for the plaintiff, and defendants appealed.
The evidence adduced by defendants, if it shows, as they contend, that the plaintiff is without capacity to sue as ministrator, establishes, at the same time, that he purchased all the rights of the legal heirs of Jacob Smith, and that he . . „ ■ -i, i , , . . . . . is, therefore, entitled to the sum claimed in his own right, Although he has sued for it as administrator, nothing should prevent him from recovering the money due to him individually. 2 Martin, N. S., 17, M‘Greer vs. Browder; 10 Martin, 464.
*494The appellee prays for damages for the frivolous appeal; vve think him entitled to them.
It is, therefore, ordered, adjudged and decreed, that the judgment of the court below be affirmed, with costs, and five per cent, damages.