§ 1252. The Same Subject: Assets and Accounting. Moneys due the estate because of a contract 'made by the original executor or administrator in his official capacity, is deemed unadministered assets and may be collected by the administrator de bonis non.20 He is entitled to the possession of all unadministered assets and may recover them from his predecessor or from any one having possession of them.21 Debts and choses in action not reduced to possession are not administered,22 and debts due the decedent may be collected by the administrator de bonis non.23 In some jurisdictions, however, it is held that the administrator de bonis non can not compel the representatives of the deceased executor or 141; Strickland v. Sandmeyer, 21 Tex. Civ. App. 351, 52 S. W. 87. In Indiana the only remedy is an action on the bond of the original executor or administrator.Lucas v. Donaldson, 117 Ind. 139, 19 N. E. 758. A distinction is made in some jurisdictions so that the administrator de bonis non may sue for devastavit by his predecessor only when such predecessor was removed or resigned from office, and not where his authority was terminated by his death.-Marsh v. People, 15 III. 284; Duffin v. Abbott, 48 Ill. 17; Hoagland v. Cooper, 65 N. J. Eq. 407, 56 Atl. 705; Tracy's Admr. V. Card's Admr., 2 Ohio St. 431; Douglas v. Day, 28 Ohio St. 175. 20 Webster v. Spencer, 3 B. & Ald. 360; Elliott v. Kemp, 7 Mees. & W. 306; Moseley v. Rendell, L. R. 6 Q. B. 338; Wilson v. 21 Langford v. Mahony, 4 Dru. & W. 81; King v. Smith, 15 Ala. 264; Morrow v. Taggart, 45 Ala. 293; Small v. Thompson, 92 Me. 539, 43 Atl. 509; Colt v. Lasnier, 9 Cow. (N. Y.) 320; Redfearn v. Craig, 57 S. C. 534, 35 S. E. 1024; Johnson v. Morris, 45 Tex. 463; McCreery v. First Nat. Bank, 55 W. Va. 663, 47 S. E. 890. 22 Beall v. New Mexico, 16 Wall. (U. S.) 535, 21 L. Ed. 292. 23 Morrow v. Taggart, 45 Ala. 293; Newhall v. Turney, 14 Ill. 338. The administrator de bonis non is entitled to the possession of unpaid promissory notes. Reed v. Reeves' Admr., 13 Bush (Ky.) 447. administrator to. turn over the unadministered assets until an accounting has been had.24 The common law rule is that the right to compel an accounting is vested in those directly interested in the estate, not in the administrator de bonis non;25 however, in some jurisdictions in the United States an administrator de bonis non is granted this power.2 26 The powers and duties of an administrator de bonis non, with regard to the unadministered assets, are practically the same as those of his predecessor27 except where such predecessor had some special confidence or trust reposed in him by the testator.28 He must give a bond for the faithful performance of his office, and where he takes with the will annexed, it must be commensurate with the powers and trusts contained in the will.29 The bond should disclose a special character of the adminis 24 Foster v. Bailey, 157 Mass. 160, 31 N. E. 771; Reed v. Hume, 25 Utah 248, 256, 70 Pac. 998. 25 Bailey v. McAlpin, 122 Ga. 616, 50 S. E. 388; Green v. Byrne, 46 Ark. 453; Hartson v. Elden, 58 N. J. Eq. 478, 44 Atl. 156; McCreery v. First Nat. Bank, 55 W. Va. 663, 47 S. E. 890. Contra: Villard v. Robert, 1 Strobh. Eq. (S. C.) 393. 26 Martin v. Ellerbe's Admr., 70 Ala. 326; Matter of Radovich, 74 Cal. 536, 5 Am. St. Rep. 466, 16 Pac. 321; Bishop v. Chase, 156 Mo. 158, 79 Am. St. Rep. 515, 56 S. W. 1080; Tunnicliff v. Fox, 68 Neb. 811, 94 N. W. 1032; Dunne v. American Surety Co., 34 Misc. Rep. (N. Y.) 584, 70 N. Y. Supp. 391; Jones v. Wooten, 137 N. C. 421, 49 S. E. 915. 27 Moseley's Admr. v. Mastin, 37 Ala. 216, 219; Bristol Sav. Bank v. Holley, 77 Conn. 225, 58 Atl. 691; Bailey v. McAlpin, 122 Ga. 616, 50 S. E. 388; Ellyson v. Lord, 124 Iowa 125, 99 N. W. 582; Conklin v. Egerton's Admr., 21 Wend. (N. Y.) 430; Dunne v. American Surety Co., 34 Misc. Rep. (N. Y.) 584, 70 N. Y. Supp. 391; Estate of Herren (Gatch v. Simpson), 40 Ore. 90, 66 Pac. 688; Smith v. Pearce, 2 Swan (32 Tenn.) 128; Ferebee v. Baxter, 34 N. C. (12 Ired. L.) 64. 28 See §§ 1242-1244. 29 Hartzell v. Commonwealth, 42 Pa. 453. tration.80 He must take possession of the chattels of the estate to which he is entitled and return an inventory thereof, and the chattels which are returned in the inventory must be accounted for by him.82 It is his further duty to distribute the assets to the persons entitled thereto.38 § 1253. Liabilities of Administrator De Bonis Non. An administrator de bonis non is not accountable to the next of kin or to the residuary legatee or others interested under the will for the devastavit of his predecessor,34 nor are the sureties on the original bond of an administrator de bonis non liable for loss by conversion committed by the first administrator, although the administrator de bonis non incorrectly charges himself with the amount of money which the converted property is supposed to represent. The liability is limited to the unadministered assets.85 But if thereafter he makes a sworn statement to the court of such amount of money in his possession, and subsequently is called upon to give an additional bond, the sureties on the new bond become liable if the administrator de bonis non does not account for the moneys according to his statement, although the 30 Small v. Commonwealth, 8 Pa. 101; Hartzell v. Commonwealth, 42 Pa. 453. 31 Alexander v. Stewart, 8 Gill & J. (Md.) 226. 32 Fay V. Muzzey, 13 Gray (Mass.) 53, 74 Am. Dec. 619. 83 Alexander v. Stewart, 8 Gill & J. (Md.) 226. 34 Bliss v. Seaman, 165 Ill. 422, 429, 46 N. E. 279. 35 Ennis V. Smith, 14 How. (U. S.) 400, 14 L. Ed. 472. An administrator de bonis non is entitled to every specific article which belonged to the decedent, and which is not disposed of and converted into money by the first administrator; such articles have not been administered and the administrator de bonis non acquires the same interest in them that the loss may have occurred by reason of the fact of conversion by the former administrator.36 first administrator had, but not so with the price of the articles already administered or converted into money; as to their price he is not entitled to have an account against the first administrator or the representatives. — Graves v. Downey, 39 B. Mon. (19 Ky.) 353, 356; Slaughter v. Froman, 5 T. B. Mon. (Ky.) 19, 17 Am. Dec. 33. 36 Ennis V. Smith, 14 How. (U. S.) 400, 14 L. Ed. 472, involving act of Congress regarding the Orphans' Court of the District of Columbia (9 Stats. at L. 4). CHAPTER XLVII. EXECUTOR DE SON TORT. $1254. Executor de son tort defined. § 1255. What acts are sufficient to constitute one an executor de son tort. § 1256. Realty and partnership property not involved. § 1257. As to legal executor and one de son tort existing at same time. § 1258. Possession of goods under conveyance to defraud cred itors. 1259. Goods received innocently, or through collusion. 1260. Possession in good faith under color of title. 1261. Acts of conservation or kindness. §1262. Acts of servants, agents, and coadjutors. §1263. Foreign executor taking possession of local assets. §1264. Payment of debts of decedent by executor de son tort. §1265. Executor de son tort can not retain assets to satisfy debt due himself. §1266. Duties and liabilities of executor de son tort. §1267. Executor de son tort no right to sue. §1268. Effect of acts of executor de son tort. §1269. Where executor de son tort is subsequently regularly appointed. § 1270. Actions against executor de son tort: Who may sue. § 1271. Forms of action against executor de son tort. §1272. The same subject: Time and venue. §1273. Defenses which executor de son tort may interpose. § 1274. Manner of pleading defenses: Judgment and execution. § 1275. Statutes abolishing office do not deprive defendant of former defenses. 81254. Executor De Son Tort Defined. De son tort means "of his own wrong." An executor de son tort is a person who, without any authority from the deceased or a court of probate, does such acts as be |