Page:Federal Reporter, 1st Series, Volume 2.djvu/329

 S22 ï'EDEBAL BBPOBTEB. �estates. By later decisions this point is clearly established. It is clear, therefore, from these àuthorities, that for this wrongful use of these trust funds by the partnership the part- nership and its members have become chargeable, and that a joint and several claim was thereby created against the joint and several estates. �Can an administratrix de bonis non sustain suoh proofs ? It is certainly for the interest of ail concerned in the York estate, ■whether as creditors, legatees, heirs, or sureties on his admin- istrator's bond given by Jordan to the judge of probate, that these proofs should be sustained, if possible, in behalf of the administratrix de borda, so that the fund may pass under her control and be administered according to law as part of the assets of the estate ; and, after some deliberation, I am satis- fiod that it may be so donc. �By the law of this state, (Eev. St. c. 72, § 15,) the judge of probate may expressly authorize any party interested to com- mence a suit on a probate bond for the benefit of the estate, and the judgment and execution, by section 17, are recovered by the judge of probate in trust for ail parties interested in the penalty of 'the bond, and he shall require the delinquent administrator to account for the amount of the same, if still in office ; but if not, he shall assign it to the rightful admin- istrator, to be coUected and the avails thereof accounted for and distributed, or otherwise disposed of, as assets. This statute bas so far changed the common law, as declared by the supreme court of the United States in 16 Wallace, {Bull v. New Mexico,) that that decision is no longer applicable in this state. As the law now is, not only the funds belonging to the estate in the hands of the administrator at his death or removal are assets which go to the new administrator, but ail sums recovered from him and his bondsmen for breach of his duty as administrator are to be received by the new adminis- trator and treated as assets. �Any dif&culty which might otherwise arise from a want of privity between the old administrator and the new is thus obviated, and by a reasonable construction of this statute it foUows that in a proceeding of this nature the new adminis- ����