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TESSIER v. WYSE. 59
alone, (c) So far as the personal assets in the hands of this admi-
nistrator de bonis non will go, the plaintiff Tessier must have
awarded to him the relief he asks, even if he should have to turn
round afterwards to recover the unsatisfied balance of his claim by
a suit upon the administration bond of the late administratrix
Rachel Wyse; as I can see no plausible, legal or equitable pretext
for requiring him to sue upon that bond before he is allowed to
obtain the relief he now seeks against this administrator de bonis
non.
Upon the whole I am clearly of opinion, that this bill may well
be sustained against these defendants as a creditor's suit, notwith-
standing its alleged defect in not expressly charging, that the
personal estate of the deceased was insufficient to pay his debts.
The claim of the plaintiff Tessier, has been established by proof
demonstrative and satisfactory; it has not been shewn that any
fraud, wilful default, or breach of trust can be imputed to him;
and it has been shewn that the personal estate of the deceased is,
at this time, greatly inadequate to the payment of the plaintiff's
claim alone. From which it is clear, that the real estate must be
sold, and may be at once sent into the market for that purpose,
while the court is engaged in calling in the creditors, and having
an account taken of the personalty. I shall therefore decree
accordingly.
Decreed, that the defendant Joseph Allender, account with the
complainants of and concerning the personal estate of William
Wyse, deceased, and the proceeds thereof which may have come
to his hands, or be claimed by him as administrator. That for
the purpose of making a final settlement and distribution of said
estate, the said administrator Allender, is required to make sale of
all the goods and chattels now remaining in his hands. And the
auditor is directed to state the account from the pleadings and
proofs now in the case, and from such other proofs as the parties
may lay before him. And the parties are authorized to take testi-
mony in relation to the account before the commissioners in the
city of Baltimore, or before any justice of the peace elsewhere, on
giving three days notice as usual: Provided, that the testimony
be taken and filed in the Chancery office, on or before the first day
of November next
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(c) 1 Mad. Cha. Pra. 578; Metf. Plea, 166; David v. Frowd, 7 Cond. Cha, Rep.
8; Hammond v. Hammond, 2 Bland, 807; The Bank v. Dugan, 2 Bland, 254.
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