Woodfin et al. vs. McNealy et al.-Opinion of Court. forty dollars paid to complainant Frances Woodfin on or about December 1st, 1853. That the checks were not endorsed by the said Frances, but were collected by said administrator and applied to his own use. That the property That the three sold for much more than it was appraised at. shares of factory stock mentioned in the inventory were sold by said Memucan for $380, on or about June 1st, 1856; that he sold the negro girl Ellen, in Columbus, Georgia, in January, 1854, and that said Frances in no way assented to said sale. That William McNealy is dead, and the defendant Adam McNealy is his only qualified executor, and is possessed of abundant means of the estate of said William to pay the demands of complainants; that complainants have repeatedly applied to defendants to pay them what is due them, but that defendants have always refused to do so, or to come to an account; that the debts against the estate were only about $200, and that said M. H. W. as administrator, received the sum of $5,800. That the sale of Watt was without authority of law, the sale having been private, &c., and that the sale of Ellen and transfer of checks were also illegal, and that defendants are liable therefor, and that it is the duty of defendants to perform the administration bond, &c. The prayer of the bill is, that defendants be decreed to account and pay over to complainants whatever may be found to be due from said estate. 1 To this bill the defendants demur on the ground, 1st. That Frances Woodfin was by the will made trustee for all the property named in the will except the legacies to M. H. Woodfin, and that said property therefore did not constitute assets in the hands of the administrator. 2d. Because the note of hand and checks, and shares of factory stock being made and executed by parties who then resided and still do, and always have resided beyond the jurisdiction of this court and out of the State of Florida, are Woodfin et al. vs. McNealy et al.-Opinion of Court. not constituted assets with which said bond can be made chargeable. 3d. Because the conditions of the bond upon which the suit is founded are not in conformity with the provisions of the statute in such cases. 4th. Because there was no order to the administrator to pay over, as the bond in its conditions stipulated. The court below ruled that the demurrer be sustained and that the bill be dismissed, from which ruling the complainants appealed to this court. We are of opinion that the first ground assumed in the demurrer is clearly bad. It is true that Frances Woodfin was Trustee, by the will, for the property coming to her and her two infant children. She was to hold it together for the common support of herself and infant children, but that surely constitutes no reason why the administrator should appropriate the whole of it to his own use, and deprive both her and them of it altogether. A trustee cannot get possession of the property devised to him or her in trust, except through the administrator with the will annexed where there is no executor, and doubtless the chief object in requiring this administrator to give bond was to secure to said Frances the delivery of the property so devised in trust. Nor do we think there is any validity in the second ground of demurrer. Promissory notes and checks, and shares of stock, although the person owing the notes may reside abroad, or the bank on which the checks are drawn, or the factory in which shares exist, may be in another State, are certainly assets in the hands of the administrator here, if he realizes the money on them, as the administrator appears to have done here. Certificates of stock may be sold here just as well as where the factory happens to be. The notes may have been ngotiated here, and the money raised on them as well as were the makers reside; and no one ever thinks of going to Philadlphia or New York, or New Orleans, to Woodfin et al. vs. McNealy et al.-Opinion of Court. collect checks drawn on either of those places. But even if he had gone to any one or all of those places to get the money, still it was assets for which he was liable on his bond. The third ground of demurrer we likewise hold bad.The condition of the bond seems to us to be in conformity with the statutes. The condition of the bond seems to cover the whole duty, of the administrator with the will annexed; it is, that he shall file an inventory, &c., and further make or cause to be made a true and just account of his administration when required; and all the rest and residue of said goods, chattels rights and credits which shall be found remaining upon said. administrator's account, the same being first examined and allowed by the Probate Court of the county where the administration is granted, and shall deliver and pay to such person or persons respectively as the said court by their order or decree, pursuant to the true intent and meaning of this act shall appoint and direct, &c. We understand that the meaning of this is, that after he has paid off all the debts he is to distribute under the order of the court. If there is a will, of course the court will order him to distribute according to the provisions of the will; if there is no will, then according to the provisions of the statute. But in either case he is to make a final disposition of the property of the estate under the order of the court; and it is frequently much more important that he should distribute under the order of the court when there is a will than when there is not, for the provisions of the statute are plain and he is not likely to make a mistake, but the provisions of the will are not always so. The fourth ground of demurrer is that no order was obtained from the probate Court directing the administrator to pay over (as is contained in the conditions of the bond,) previous to the filing of the bill. We do not think that this ground of demurrer is well ta Woodfin et al. vs. McNealy et al.-Opinion of Court. ken. The statute requires the administrator to make annual settlement, and limits the time for a final settlement to two years after the grant of administration. The bond also provides that he shall make a true and just account of his administration when required, and "to pay to such person or persons respectively, as the court by their order or decree, pursuant to the true intent and meaning of this act shall appoint and direct." Now the bill expressly alleges that the administrator was requested and urged by the complainants to come to an account and settlement of the estate, but that he refused so to do. How could the Court of Probate make any order to pay over, unless the accounts were before him? and who was to exhibit the accounts if the administrator did not? We think the counsel for the defendants has misconceived the design and meaning of this condition of the bond. It is evidently intended for the protection of the administrator when he may be in doubt as to the proper parties who are entitled to receive the estate. It never was intended to be a condition precedent to calling the administrator to account. In conclusion, we may remark, that however the law may be as to the necessity of first fixing the amount of indebtedness against the administrator before proceeding against the sureties, we understand the stipulation entered into by the defendants and filed with the record to dispense with any requisition of that kind, and that they are to become the accounting parties, provided the bond is binding upon them. It is therefore ordered and adjudged that the decree of the chancellor rendered on thè -185—, whereby it was adjudged that the bill filed in this case should be dismissed, be reversed and set aside with costs, and that the cause be remanded to the court below with directions that the defendants have leave to answer and to take such further proceedings therein as may be conformable to equity. -day of Gaines vs. Forcheimer & Brothers.-Statement of Case. WILLIAM B. GAINES, PLAINTIFF in Error, vs. FORCHEIMER & BROTHERS, DEFENDANTS IN ERROR. 1. A verdict will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest injustice done although there may appear to have been a PREPONDERANCE of evidence against the verdict. 2. As a general rule, if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted. This case was decided at Marianna. Writ of error to Santa Rosa Circuit Court. The appellees instituted suit in the court below against the appellant on a promissory note for three hundred dollars, dated 15th of June, 1850. A mortgage was given to secure the payment of the note, which was filed with the note, and on which was endorsed a credit for eighty-eight 90-100 dollars on the 16th June, 1850. The defendant pleaded first, payment in full, second, set off. The record contains the following copy of a receipt given by the defendants in error to the plaintiff in error, for certain notes described, viz: Received from Wm. B. Gaines, Esq., three notes, as follows: one for $100 30-100, drawn by J. O. Carroll at three months from Feb. 11th, 1852, and two due bills, drawn in favor of Wm. Carns, by J. O. Carroll, on 13th January, for eleven dollars, and the other 22d January, (both on demand) for seven dollars. E. FORCHEIMER & CO., The deposition of Edward Dennis, a witness examined by defendant, is embraced in the record, in which the witness states that he was on several occasions present when settlements or arrangements took place between the parties |