The complainants file their bill as distributees of J. C. Dickson’s estate, against the defendants as administrators and administrator de bonis non of Jacob B. Womack, who was administrator of said J. C. Dickson. The bill charges that J. B. Womack bid off, at his OAvn sale as administrator of Dickson, or otherwise appropriated to his own use, a number of slaves belonging to said estate, including eight which it is alleged he purchased at his own sale as administrator of said Jacob B. Womack; that Womack’s
To this bill the defendants have all filed their separate demurrers, and various grounds of demurrer are set out. To apply the causes for demurrer, it is necessary to extract from the bill, as far as may be, the several distinct matters or grounds in regard to which relief is sought, and then to see what relation the defendants severally or collectively bear to the several matters set up in the bill. It will be seen that the complainants sue as distributees of the estate of James C. Dickson, deceased; and that the suit is against the defendants, in their character as administrators of the estate of J. B. Womack, deceased, and against their sureties, founded upon the charge that the intestate of the defendants was the administrator of the complainants’ father, through'whom they claim; and the grounds taken by the bill for a decree against the defendants are the following:
First. That the defendants’ intestate, as administrator of Dickson, wasted and appropriated a large portion of the estate to his own use.
Second. That eight or more of the negroes belonging to the estate of Dickson are in the hands of one of the defendants, Abram Womack, jun.
Third. That the estate of Womack is indebted to the estate of Dickson in the sum of twenty-eight thousand three hundred dolPage 490lars, which the bill alleges the complainants have a right to charge upon the administrators of Womack and their sureties.
Fourth. That the administrators of Womack have not fully accounted for the estate of their intestate.
The bill prays that they be held to account. Upon this statement of the grounds of the bill, the inquiry at once arises, can the complainants maintain a suit, as distributees, for all or any of these causes? And if so, second, can the defendants be made liable on all or any of these grounds, in the character they are sued on?
The sale and purchase of the eight slaves belonging to the estate of Dickson, by Jacob B. Womack, as administrator, was, I apprehend, such an administration or conversion of them as would prevent the administrator de bonis non from maintaining suit for their recovery. I entertain no doubt that the complainants, as distributees of Dickson, would have the right to pursue the slaves in the hands of the defendant, Abram Womack, jr., who bought them at the sale of J. B. Womack’s estate, provided it were alleged that he had notice that they were the property of Dickson’s estate, and also had notice of the manner of J. B. Womack’s purchase; but no such notice is alleged. This right would rest upon the familiar principle, that a purchaser of trust property with notice, actual or constructive, of the trust attached to it, takes it clothed with the trust, and becomes ipso facto trustee. 1 Yerger, 296. But the complainant’s right to pursue these slaves in the hands of Abram Womack has no conceivable connection with his late character as administrator of J. B. Womack.
So far as the conjectured inaccuracy of the inventory and list of indebtedness and accounts of the estate of Womack by the administrators is concerned, it is clear that there is no foundation for sustaining this bill, even if the proper parties were before the court. These matters could only be reached by a bill to surcharge and falsify the accounts, and it is well settled that a bill for that purpose must point out and designate the errors, omissions, and false charges complained of; and where an account is gone into under such a bill, the .complainants are limited to such matters as they have specifically alleged to be over charges, errors and omissions. Phillips v. Baldwin, 4 Cranch, 306; 1 ed. Ch. 1.
In relation to the joinder of the former with the present administrator of Womack, I see no objection. If the complainants had shown a right to sue them, such a joinder seems to be proper. See Holland v. Pryor, 1 Mylne & Keene, 237; Con. Eng. Ch. R. It is estimated although not expressly alleged in the bill, that the estate of Womack has been reported insolvent. If this fact had distinctly appeared, it would of itself have constituted an insuperable objection to the suit. Our statute expressly prohibits a suit from being maintained against administrators after a declaration of insolvency. A suit under such circumstances could only be maintained, I apprehend, if at all, upon a bill expressly charging fraud in procuring such declaration of insolvency.
The several demurrers must be sustained, and the bill dismissed without prejudice.
From this decision an appeal was taken to the High Court of Errors and Appeals, which remains undecided.