Jane Smith, and others, vs. James Smith, and others, 2 Hill Eq. 112

O’Neall, J. Jane Smith and William R. Smith administered upon the estate of James Smith: William R. Smith had the entire management of the estate, and all the funds were received by him : Jane Smith, however, survived him, and William Bradford, as guardian, recovered against her as surviving administratrix, the sum of $230 50, with interest from the first of March, 1809, which she paid on the 16th of September, 1824 : she also paid $60 81 costs. Bobo, for the appellant. Smith and Thomson, contra.

Inasmuch as Jane Smith’s liability for the payment of the principal sum and interest recovered, arose out of the administration of William R. Smith, she was in equity substituted for the creditor, and was held to be entitled to be paid as a bond debt. The Commissioner and Chancellor have allowed the costs of that recovery to stand upon the same ground; but this is inadmissible, the costs never were, in any point of view, such a demand as could have been recovered on the administration bond. They could not, therefore, have rank as a bond debt.

But Jane Smith ought to have paid the demand against her without a suit: the costs were therefore unnecessary, and she is not now entitled to recover them. *The exception of the defendant to the Commissioner’s report J in this respect is sustained, and the Chancellor’s decree reformed. Johnson, J., and Harper, J., concurred.