The opinion of the Court was delivered by

This action was commenced in the Court of Common Pleas for Anderson County on the 8th of January, 1895, by service of the summons and complaint on the defendants. The defendants answered the complaint, setting up as their first defense that of res adjudicata, which, together with the former complaint, to which reference is made in said first defense, the order of his Honor, Judge Buchanan, and appellants’ exceptions, will be incorporated in the report of the case.

The substantial differences in the two complaints are contained in the additional allegations set forth in paragraphs 3 and 4 of the second complaint, which are as follows: 3. “That said deed was made by said heirs of N. S. Clardy, deceased, by way of compromise of all the claims, differences and disputes of said heirs, and for valuable con*24sideration to each of them, as well as for the purpose of saving costs and expenses of threatened and bitter litigation.” 4. “That the defendant, M. A. C. Bryant, is a daughter of the said N. S. Clardy, deceased, and one of his heirs at law and distributees, and for valuable consideration joined in said trust deed, and covenanted and promised among other things in said deed, the same being in writing under her seal, that she would ‘pay her note of $826 and interest to the said A. W. Pickens, trustee as aforesaid,’ said note being the same hereinbefore set out and described, all of which will more fully appear by reference to said deed, which is dated 1st day of March, A. D. 1892, and recorded in register of mesne conveyance office for Anderson County, S. C., and to which plaintiff begs reference as often as may be necessary for the purpose of this suit.”

It will not be necessary to consider the exceptions seriatim, as they raise the one question, whether his Honor, Judge Buchanan, was in error in sustaining the defense of res adjtidicata.

1 The additional allegations, it will be seen, are 1st, that the defendant, M. A. C. Bryant, was a daughter and an heir at law of N. S. Clardy, and joined in the trust deed; 2d, the valuable consideration to her for so signing; and, 3d, a special promise on her part contained in said trust deed “to pay her note of $826 and interest to the said A. W. Pickens, trustee,” said note being the one sued on in this action. There were no allegations in the first complaint to prevent the application of the familiar principles that when a person dies intestate an action can be maintained upon a note belonging to his estate, only by his legal representative through regular administration. Ex parte Davega, 31 S. C., 413; Haley v. Thames, 30 S. C., 270; Richardson v. Cooley, 20 S. C., 347; Trimmier v. Thompson, 10 S. C., 164; Richardson v. Gowen, 10 Rich., 109. The demurrer to the first complaint was properly sustained.

*252 *24The additional allegations in the second complaint ma*25terially change the cause of action. When a person dies intestate, seized and possessed of real and personal property, and there are creditors of his estate, the heirs at law, distributees, and creditors all have an interest in said estate. The heirs and distributees have the right to make such settlement as will only affect their interests. They cannot, however, under such settlement of their interests, make any agreement that would be obligatory on the creditors. We do not understand that the heirs at law and distributees, in entering into the agreement mentioned in the complaint, intended to do more than bind themselves, but not the creditors of the estate. We do not admit that A. W. Pick-ens, the plaintiff, is an executor de son tort, quoad the defendant, M. A. C. Bryant. Haley v. Thames, supra. But, even admitting that he is an executor de son tort, in intermeddling with the intestate’s estate, by taking possession of the note and suing thereon, does this enable the defendant, M. A. C. Bryant, to repudiate her contract by refusing to pay her note according to agreement? We think not. If the defendant pay the note according to her promise, this would be a legal and valid payment of the note, provided the trustee should distribute the proceeds in such manner as the law directs. Rev. Stat., sec. 2038. When she entered into the contract she took upon herself the risk of having to pay the note, through regular administration, in case the proceeds were not distributed by the trustee in making such payments as “lawful executors or administrators may or ought to have and pay by the laws and statutes of this State.” We do not see how it can be seriously questioned that the agreement on the part of M. A. C. Bryant, for valuable consideration, to pay money to the trustee to be expended in extinguishing the indebtedness of the estate, was binding on her and the parties with whom the agreement was made. The present action is simply to enforce performance of that agreement as between the parties bound thereby. The provisions of section 2039 of the Revised Statutes for com*26pelling executors de son tort to deliver possession of property in their hands to the legal representatives through regular administration are in no wise involved in this case. Having reached the conclusion, that the allegations of the two complaints are materially different, the order sustaining the defense of res adjitdicata was erroneous.

It is the judgment of this Court, that the order of the Circuit Court be reversed.

The only question presented by this appeal is, whether there was error in sustaining the defense of res adjudicata, and to that alone should this decision be regarded as responsive. I agree that there was error in sustaining that defense, so far as the defendant, M. A. C. Bryant, is concerned, for the simple reason that the cause of action in the former case was the breach of a promise to pay the amount stated to the alleged intestate, while here the cause of action alleged against M. A. C. Bryant is the breach of a promise to pay the said sum of money to the plaintiff. It is true, that both promises were made to pay the same debt, but they were made at different times to different persons, and evidenced by different instruments: one by the note set out in the complaint, and the other by the trust deed referred to in the complaint in the present action. But so far as the other two defendants are concerned, I see no error on the part of the Circuit Judge in sustaining the defense of res adjtidicata as to them, for there is no new or additional cause of action set forth against them in the present complaint; but, so far as I can perceive, it is precisely the same as that set forth against them in the previous complaint.