majority">Goldsborough, J.,

delivered the opinion of this'Court:

In this case Susan Boteler, the appellant, was-entitled -as the widow of Wm. Boteler, to the sum of $222.24, allowed to her in the distribution of the proceeds of the sale of her husband’s real estate. The auditor’s report ascertaining this sum, was finally ratified and confirmed by tíie Circuit Court for Prince George’s County, and the ¡trustee, Daniel C. Digges, was directed by the usual order accompanying the ratification of the report, to ;pay- over the proceeds in accordance therewith. Before notice .could be given and demand made, upon the ¡trustee to pay the amount claimed, he departed this life. Administration upon his personal estate was thereafter granted to Elizabeth C. Digges and Richard B. B. Chew, and notice was served upon them and demand made to pay the said sum; they failed to pay the same, and suit was instituted by the appellant in thp name of 'the -State -for her use, against the appellees, the sureties in the trustee’s bond.

'The amended declaration set out-the material facts above stated, and the appellees demurred to the declaration. The Court below gave judgment on the demurrer for the defendants. From this judgment the appeal before us was taken. We deem it unnecessary to determine as a question of law, the sufficiency of the averments in the declaration, as we are justified, by the weight of authority, in deciding, that the remedy of the appellant, under the circumstances, is only in a Court of Equity.

*243The ease of Oyster vs. Annan, 1 G. & J., 450, has established the law, that, to sustain a suit on a trustee’s bond for a sum allowed in an auditor’s report, finally ratified and confirmed, tlie party suing must aver and prove a service of tbe order of ratification, on the trustee, and a demand of payment of tbe sum specified.

There is no breach of the contract, nor is the trustee in default until his refusal or failure to comply with the order of the Court after notice thereof. If, as in this case, the death of the trustee rendered it impossible to give notice or make demand of payment, tbe sureties should not be placed, in a position of legal responsibility which bad not attached to the trustee at tbe time of bis death. The notice to the administrators, and demand upon them, could not affect the sureties at law, nor could it affect the administrators who were no parties, but strangers to the proceedings in equity.

In the case of Brooke vs. Brooke & others, 12 G. & J., 306, where many of the prominent facts were similar to those ill this case, tliis Court said tbe death of tbe trustee, under tlie circumstances in which it occurred, was such an accident as entitled the party seeking it, to relief in equity in tlie manner in which lie seeks it.

We think there is another substantial ground why relief should be sought in equity. If, as is averred in the appellant’s declaration, the trustee received tbe purchase money for tbe sale of the real estate, and there is nothing to show that it was kept separate and distinct from his own personal estate, it necessarily went into the hands of his administrators. By a bill in equity, tbe administrators being made parties, they could be called on to account for those funds and to pay and satisfy the appellant’s claim in part or in whole, according to the amount of assets to he administered, and to that extent, relieve the the appellants front their responsibility, and they being made parties, the Court could, enforce the execution of their contract according to its obvious meaning and design. See tbe authori*244ties cited by this Court in their opinion in 12 G. & J., 321.

(Decided March 11th, 1864.)

Being therefore of opinion that there is no error in the ruling of the Circuit Court, the judgment’will be affirmed.

Judgment affirmed.

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