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TESSIER v. WYSE. 31
departed this life; and after her death, on the 16th of July, 1823,
letters of administration de bonis non, with the will annexed of the
testator William Wyse, deceased, were granted to the defendant
Joseph Allender, who returned an inventory and appraisement
amounting to $2,293; that the difference which appears to be due
to the testator's estate between the balance in the account rendered
by the said administratrix Rachel Wyse, and the amount of assets
returned by the administrator Allender, was expended in the main-
tenance, support and education of the testator's children.
Whereupon the bill prayed, that the administrator de bonis non,
might set forth and declare what had become of the personal estate
of the testator; that the said receipt might be delivered up to be
cancelled; that the mortgage to Riston might be set aside in favour
of these plaintiffs; that the defendants or such of them as were
liable therefor, might be ordered to pay the plaintiffs' claim; or in
default thereof, that so much of the real and personal estate of the
testator as might be necessary for the satisfaction thereof be sold;
and that the plaintiffs might have such other relief as the nature of
their case might require.
On the 8th of August, 1825, the defendant Riston put in his an-
swer, in which he says, he cannot admit that the testator was
indebted to the plaintiffs; but he admits that the testator made his
will and died about the time stated, leaving a widow who admi-
nistered on, and took possession of his estate; and also left the
children as mentioned in the bill. This defendant says he knows
nothing of the bill of complaint referred to as having been filed
in this court. But he admits that a bond was given as stated,
which he avers was received by the plaintiff Tessier, in full satis-
faction of his claim against the estate of the deceased. This de-
fendant also admits the recovery of the judgments; but does not
admit, that they are inoperative by reason of the loss of the bond
of which he knows nothing. This defendant moreover admits,
that the mortgage was made to him as stated; that Rachel Wyse is
dead; that after her death, administration de bonis non was granted
to the defendant Allender; but he does not admit, that the said
difference in the amount of the personal assets was expended in
the maintenance and education of the children of the deceased.
And fatally, this defendant submits, that by the negligence and
misconduct of the plaintiff Tester, he has lost all right to demand
any portion of either the real of personal estate of the testator; and
that bis only remedy is, against the person of the defendant John
M. Wyse or his estate, if he has any, &c.
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