This action was begun in the Superior Court of Yance County to recover of the defendants damages resulting from certain alleged breaches of the bond executed by the defendant Mildred V. Purvis, administratrix c. i. a. of S. M. Blacknall, deceased, as principal, and by the defendant The Fidelity and Casualty Company of New York as surety. The bond is in the penal sum of $80,000 and is conditioned *229as required by statute. 0. S., 33. Tbe plaintiffs are creditors of the estate of S. M. Blacknall, who died in Yance County on 19 April, 1929, leaving a last will and testament, which has been duly probated and recorded. Their claims against the estate are founded upon notes executed by S. M. Blacknall, and aggregate the sum of $21,587.41. These claims have not been paid. There are no assets now in the hands of the defendant Mildred W. Purvis, administratrix c. t. a., for the payment of these claims, or any part of them.
It is alleged in the complaint that the defendant Mildred W. Purvis, administratrix c. t. a. of S. M. Blacknall, deceased, some time during the month of June, 1929, wrongfully paid to certain heirs at law and dis-tributees of the estate of S. M.'Blacknall, out of the assets of his estate then in her possession, the sum of $10,000 in settlement of a caveat proceeding instituted by said heirs at law and distributees, before the clerk of the Superior Court of Yance County; and that such payment was a breach of her bond, in the nature of a devistavit, and resulted in damages to the plaintiffs.
It is further alleged in the complaint that the defendant Mildred W. Purvis, administratrix c. t. a. of S. M. Blacknall, deceased, some time during the month of June, 1929, wrongfully paid to certain attorneys at law, employed by her, out of the assets of the estate of the said S. M. Blacknall, deceased, the sum of $7,000, for their services in defending the caveat proceeding which was instituted by heirs at law and distributees of the estate of the said S. M. Blacknall, deceased; that such payment was a breach of her bond, in the nature of a devistavit, and resulted in damages to the plaintiffs.
It is further alleged in the complaint that from the date of her qualification as administratrix c. t. a. of S. M. Blacknall, deceased, to wit: 23 April, 1929, to some time during the summer of 1932, the defendant Mildred W. Purvis, administratrix c. t. a. of S. M. Blacknall, deceased, continued the operation of the business in which the deceased was engaged at the date of his death, and for that purpose wrongfully paid out large sums of money belonging to the estate; and that the use of said money for said purpose was a breach of her bond, in the nature of a devistavit, and resulted in damages to the plaintiffs.
It is further alleged in the complaint that because of the said breaches of her bond, the defendant Mildred ~W. Purvis, administratrix o. t. a. of S. M. Blacknall, deceased, is not entitled to commissions, but that notwithstanding this, she has wrongfully paid to herself, out of the assets of the estate, large sums as commissions, and that such payment was a breach of her bond, in the nature of a devistavit, and resulted in damages to the plaintiffs.
*230In its answer to tbe complaint tbe defendant Tbe Fidelity and Casualty Company of New York, surety on tbe bond of its codefendant, denies that sbe bas breached her bond as alleged in tbe complaint, in any respect, and among other defenses to plaintiffs’ recovery in this action of tbe said defendant, pleads tbe three-year statute of limitations, C. S., 441 (6).
This is not an action or proceeding to surcharge or falsify tbe final account of tbe defendant Mildred W. Purvis, administratrix c. k. a. of S. M. Blacknall, which was filed in tbe office of tbe clerk of tbe Superior Court of Yance County on 9 December, 1932, and, because of tbe disqualification of said clerk, by reason of bis interest in tbe estate, audited and approved by tbe judge of tbe Superior Court of Yance County. Tbe plaintiffs do not challenge in this action tbe correctness of said account. They contend that disbursements shown by said account were breaches of tbe bond sued on, and that by reason of these breaches they are entitled to recover of both tbe principal and tbe surety on said bond, tbe damages which they have sustained as creditors of tbe estate of S. M. Blacknall, whose just claims have not been paid.
On tbe facts found by tbe referee, and approved by tbe judge, tbe plaintiffs were entitled to a judgment in accordance with tbe law applicable to these facts. Tbe order made by tbe judge, in effect remanding tbe action to tbe clerk of tbe court to adjust and settle tbe final account of tbe defendant Mildred W. Purvis, administratrix c. t. a. of S. M. Blacknall, in accordance with certain rulings appearing in tbe order, was error. Tbe order is reversed and set aside, to tbe end that there may be a new trial of tbe action on tbe report of tbe referee. Tbe correctness of tbe rulings of tbe judge on tbe exceptions to tbe conclusions of law made by tbe referee cannot be considered by this Court in tbe present state of tbe record; nor should such rulings be deemed conclusive at tbe new trial.
As tbe order of tbe judge, in effect remanding tbe action to tbe clerk of tbe Superior Court of Yance County, bas been reversed and set aside, it follows that tbe appeal of tbe defendant Tbe Fidelity and Casualty Company of New York from said order must be dismissed. There is no judgment in tbe record from which an appeal to this Court will lie. See Pritchard v. Spring Co., 151 N. C., 249, 65 S. E., 968, and cases cited.
Error in plaintiffs’ appeal.
Defendant’s appeal dismissed.