We are of opinion the suit can he maintained on the bond against the security, although the administratrix has not settled her accounts, nor any proceedings been had against her to ascertain the surplus in her hands for distribution. — Judgment for the Plaintiff.
Williams v. Hicks, 5 N.C. 437, 1 Mur. 437 (1810)
July 1810
·
Supreme Court of North Carolina
5 N.C. 437, 1 Mur. 437
Henry Williams, Chairman, &c. v. John Hicks.
1- From Warren.
The distributees of an intestate’s estate may bring suit for their distributive shares against the securities of an administrator, upon the administration bond, without any previous proceeding against the administrator, although he has made no settlement of his administration with the Court, nor filed an account current.
John Witherston having died intestate, letters of administration were granted to Nancy Witherston, who entered into bond, with John Hicks her security, for her faithful administration of the estate of her intestate. She returned to the County Court an account of sales of the estate, and then removed out of. this State to parts un*438known, having made no settlement with the Court, nor returned an account current of her administration. The jntcstat0 ]cf£ ty¡'() children, Rebeccah and Gabriel; and f()1. the purpose of recovering their distributive shares of his estate, they brought an action of debt against John Hicks for the non-performanee of the conditions contained in the bond given by the administratrix, to which he ■was security ; and upon the trial, gave in evidence the account of sales aforesaid, for the purpose of shewing the amount of the estate. A verdict was given for the Plaintiff, subject to the opinion of the Court, upon the question, Whether this suit could be maintained before some proceedings were had against the administratrix, whereby it could be ascertained what was the surplus remaining in her hands for distribution'?