¶1The opinion of the court was delivered
¶2It is the duty of administrators, when selling the personal property of their decedents on time, with approved security, to see that the surety is not of doubtful character for solvency and ability to pay, and, therefore, the purchaser is bound to offer sureties that are not subject to this objection." Was this duty satisfied by the fact of ability without the character, or was it waived by the objection that the surety was a lawing character ? We think not. The only mode of ascertaining a man’s ability that is readily practicable for such purposes, is by inquiring into his reputation for ability, and if that is against him, it is enough. Specific as was the objection to the surety, it meant that he was insufficient, and this left on the purchaser the duty of seeing to his sufficiency. If other circumstances had shown that the objection was a mere sham, intended as a cover for a refusal to carry out the contract, the case would have been different. 17 Wend. 337. A refusal to carry out the contract would dispense with the necessity of a tender on the part of him who sues for its breach.
¶3Judgment affirmed, and record remitted.