5. Hence a debtor made executor must account for his debt to the residuary legatee &c. obligor executor, who accepted by before probate this is a discharge. The obligee made the administering, and died Making the debtor ex ecutor during A's minority, does not discharge the debt. 1 Ld. Raym. 605, Carveth v. Phillips; 2 Bac. Abr. 280; 11 Mod. 38 to 42, case of Wankford above. CH. 29. Art. 4. Churchhill. § 6. Two executors join and give a release of a debt due to Salk. 319, the testator's estate, but one only receives the money. The Hopson. English books decide, that both are liable to the testator's creditors; but only he who receives the money is liable to his legatees. How far this principle holds here, is not decided. The one not receiving need not join. 7. After one has generally admitted himself to be admin- 1 Ld. Raym. istrator, he cannot plead he was a temporary one only, and his 265, Sparks v. administration is ended; but one sued as administrator gen- Crafts, & 408. erally, may plead he is such only during A's minority; but he must also shew A is still under age and administration con tinues. Somerset. 5 Burr. 2608. Lofft. 81. §8. Where lands are devised the executor before probate 2 W. Bl. 694, of the will may lease them. The executor's power arises from Bendest v. the will, and not from the ordinary; and he may declare before probate, Cro. Jam. 15. This was a devise by implication, being a devise to his daughter Mary after the death of his daughter Betty, by which the devisor intended her a life estate. The will alone gives the executor a good title to the goods. Probate is necessary only to enable him to sue for debts, and 1 D. & E. 480. Pish. § 9. As to leasehold estates. Where the deft. is charged Salk. 316, as executor, judgment must be de bonis testatoris, though he Buckley v. might have been charged as assignee in the debet and detinet, because of his taking the profits himself: 2. Wherever the rent is of more value than the land the executor may plead it; for then he is accountable in no way for the term to the testator's creditors, or to his legatees; and as to tenancies from 3 D. & F. 13, year to year, as long as both parties please; and if a tenant dies ter. intestate, his administrator has the same interest the intestate had, and the lessee of such an administrator may declare in ejectment on a term for years. If an executor sell, surrender, Lofft 68. or merge a term for years, it is still assets, Toller 141, 142. Doe v. Por Billinghurst v. Speerman. -2 Salk. 464. 1 Ld. Raym. § 10. Assets. If an executor pay interest on the testator's See Assets. debts, it is prima facie, though not conclusive evidence of assets, 1 Salk. 297, 5 D. & E. 8, n. And if the executor or administrator be sued for rent, he may plead no assets; and that the rent is of more value than the land or premises. Estates per auter vie are assets only for paying debts, not legacies, in England; nor is it distributable, but by our law it falls into the mass of the pro 96. CH. 29. Art. 4. 589.-Salk. 310, Roch v. Leighton. 5 D. & E. 6. -3 East 2, 7, Hope v. Bague & al. and 7 D. & E. 453. perty of the deceased. Judgment against an executor on confession or default admits assets, and on devastavit he is estopped to say he has not assets, and the jury also is estopped to 1 Ld. Raym. find no assets. Administrator's promise to pay the intestate's debts is nudum pactum if no assets. The plt. got judgment against the testator, and judgment of execution in scire facias against his executors, the defts.; then sued them on this last judgment in debt in the detinet, suggesting a devastavit. Held, first, the executors being conclusively fixed with assets by this last judgment, the issue on non detinet lay on them to prove the due administration of such assets. A declaration in the detinet only, against an executor is cured by verdict, but if not, the plt. on such a declaration may take judgment de bonis testatoris; that is, may waive the better judgment de bonis propriis, and take the less de bonis testatoris. By our law, after such judgment against executors or administrators the deceased's estate may be rendered insolvent, and then such judgment will be paid in proportion; hence, not conclusive for the whole. Lands in Georgia assets in the hands of the executor, and may be followed by the creditor in the hands of the devisees &c. 2 Cranch 407. 3D. & E. 125, Dundass. § 11. Payment on a forged will &c., or administration Allen, adm. v. repealed &c. seems to be now well settled, that bona fide payment in such cases by debtors of the debts to the deceased, are valid. As where a will was forged and proved, and a debt was paid to the executor by a debtor to the intestate. Held, he was discharged, though the probate was afterwards annulled and administration granted to the intestate's next of kin. While the probate remained, this will could not be impeached, and the executor had a right to the payment, and a court of law would have inforced it, and per Buller J. the probate is a judicial act. The payment of a debt to an administrator de facto is valid, though the administration be afterwards repealed and administration granted to another. Assets in choses in action, see Ch. 24. 8 East 187. 12 Mass. R. § 12. The heir is not liable while the executor or adminis399, Royce v. trator is liable. Burrill & al. 2. No action lies against the heirs before letters of administration be granted, and when they may be granted. By our laws, the executor or administrator while he exists, has in his hands the whole estate of the deceased if wanted for fulfilling his contracts: 3. It is only when the creditor can in no way sue the administrator, that he has a right to sue the heirs. Mass. Acts, 1789. Feb. Feb. 14, 1793. 13. By these acts executors and administrators must be sued within four years after they give bonds in the probate office for debts the deceased owed, suable within said four years, provided the executor or administrator give and post notice Cн. 29. Art. 4. and file evidence thereof in the probate office, as the said acts direct but these acts do not affect legacies, bequests, or annuities. And if a contract of the deceased do not become suable within the four years, but will absolutely become due. after the expiration thereof, the contractee may file such contract in the probate office any time within the four years, and the executor or adininistrator may retain assets to pay it, unless the heirs or devisees of the estate will give security to pay it. And by the fifth section of said first act, if any covenant of the deceased be not in full force during said four years, the contractee therein not having so filed the same, may sue those who inherit the estate of the deceased or the devisees thereof, 1 Wash. 62.-if the contractee's claim "be made within one year from the 59. time of its becoming due." Office of Ex. Cro. Car. 515. 8 East 339, West & al. v. Moore, Ch. 76, a. 6, s. 4, Toller's Law of Ex -6 East 604. -8 ecutors 139 to 200, 409, on Mort. 682. -Fonbl. 255. Assets, what. Trees not severed and their fruit, as apples, pears, &c. go to the heir; so grass growing, though fit to be mowed. But corn, though growing, and all things of the kind, produced annually by labour and cultivation, go to the executor, as also hops, saffron, hemp, &c.; but they go to the devisee of the land; but a devisee of goods, stock, and moveables takes them. The executor or administrator is also chargeable with, as assets, all chattels real and personal he &c.-2 Pow. receives from the deceased; as terms for years in lands, houses, mortgages, and debts thereby secured, until the equity of redemption is foreclosed or released, and the mortgagee is in possession. And if not mentioned to whom payable, is payable to the executor or administrator, and not to the heir, because originally derived out of the personal estate, 1 Vin. Abr. 148, and if payable to the heir or executor, and before the day is paid to the heir, as the mortgagor may elect, yet the executor has it, 2 Ventris 351; Off. of Ex. Supp. 47; Harg. Co. Lit. 210; 2 Ch. Ca. 187; 1 Vern. 412. if the mortgagor neglect to redeem, the morgagee's heir is 185. decreed in equity to convey the mortgaged premises to the executor; but otherwise, if the mortgagee himself gets an absolute title, as then it appears he meant to turn a chattel into a real estate, 1 Eq. Ca. Abr. 273, 328. But if his heir get such a title, it avails him not in equity, 2 Vern. 193; but the heir has the land mortgaged whenever it appears the mortgagee intends to make it real estate, 1 Vern. 271, 581; 2 Burr. 969, or means his heir shall have it. And 2 Ch. Ca. 60, 140, 145. Real chattels, as terms for years in houses, lands, commons, Toller's L. of estovers, and other moveable goods, go to the executor or Executors administrator, and lands devised to an executor for a term of 2 Bl. Com. years to pay debts are assets, and so are leases assets to pay 386. debts, though he assents to the devise of them. So a lease for years determinable on lives is a chattel and assets. So a CH. 29. 295. lease from year to year, as long as both parties please, is a chattel and assets, and with the leases for years go animals feræ naturæ, in which the deceased left property, as fish, doves, bees, &c. 3 D. & E. 13. as belonging to the fish-pond, dove-house, bee-hive, &c. -6 D. & E. leased, 3 Bac. Abr. 57; but leases for years are assets only for as much as they exceed in value the rent, id. The reversion of a term vested in the executor is assets, 3 Bac. Abr. 58; 11 Vin. Abr. 240. And if A, as executor, have a term, and he purchase the reversion in fee, it is still assets, though merged; so, though the lessee's executor surrender, 1 Co. 87. So where A seized in fee, devised to B for thirty-one years to pay debts and appointed B executor, and the fee descended on him and the term merged, yet it was adjudged in esse and assets, as to creditors and legatees, 11 Vin. Abr. 229. So A has a term for years in his wife's right as executrix, and he buys the reversion, and the term merges and is extinct as to her, though she survive, yet it is assets in her hands as to strangers, 11 Vin. Abr. 236; 2 Vern. 213, 298; aliter as to terms for years erected for specific purposes. As if A reserve a rent in a lease for years and die, the rent in arrear at his death goes to his executor, 3 Bac. Abr. 63, as an action has accrued for it in the testator's life time. See Emblements, Ch. 76, a. 6. See Feræ Naturæ, Ch. 76, a. 9. 2 Bl. Com. Emblements go to the executor or administrator as assets, and all property a lessee for years has in trees but his fruit &c. goes to his executor or administrator as assets, but these must be severed during the term, Com. D. Biens. Vegetables, animals feræ naturæ are assets in the hands of the executor, 2 Bl. Com. 390, 392, 393; and the minutest property in the deceased in his animals, in point of value goes to his executor, 3 Bac. Abr. 57; as house-dogs &c., or if kept only for pleasure or whim, as parrots &c. Vegetables, as 389-7 D. & fruit, plants, or trees, when severed, are assets, as grass mown, and apples gathered; so manure in heaps, not spread, 11 Vin. Abr. 175; but quære, as to manure for the use of the land. All the deceased's moveable property is assets wherever situated, Toller 154, though at sea or abroad, and are viewed as in possession of the executors, as they may have trover in their own names where the deceased had an absolute pro2 Dall. 291.-perty in them at his death, hence his bond in trust. E. 358.Salk. 71.3 Bac. Abr. 58. 4 Dall. 450.An admr. has trespass for entering on the intestate's lands, and burning his mills in his life-time. 1 Day's Ca. 180.-2 Dall. 223. 14. American cases. The sale of lands by executors, under a power to sell for the payment of debts, is good against creditors; but not if the power be to sell for the payment of legacies. And in such case for paying debts, the purchaser takes the land discharged from the lien of judgments, as well as other debts of the deceased. And on a general principle, whenever a part of the deceased's estate is legally sold by his executor or administrator by order or license of court, such part must legally cease to be a part of the deceased's estate, and the purchaser's title must be complete and absolute. But it may be well doubted if a court can authorize the executor, administrator, or other, to sell part or all the deceased's estate to pay legacies, while it is liable to pay his debts. Lands were devised to be sold, not saying by whom, and the proceeds divided. Held, a sale made by the survivor of two executors was valid. Cн. 29. Art. 4. 15. If a creditor takes the executor's or administrator's 1 Dall. 347 bond, he discharges the old debt due from the estate of the &c. debtor deceased. A testator in 16. Where the testator wrongfully possessed himself of 2 Dall. 176. an estate, held, indebitatus assumpsit lay against his exec- curs costs in utors to recover the mesne profits of it. Though the party defending injured might have had trespass against the testator, yet he against a mahad a right to waive the tort, and claim the profits, as to his execwhich the testator became indebted, and the right of action utor cannot survived against his executors. licious suit, have case for these costs, 1 Johns. Ca. Smith. Debt does not lie sheriff for tate, Caines' 17. In New-York, the deft. executor or administrator must 2 Day's Ca. defend himself on the first suit, or he is concluded. As where 286. there had been a former judgment by default, against execu- 276, Platt v. tors, and on scire facias returned nulla bona, held conclusive Admr. of evidence of a devastavit; and then on a plea of plene administravit, the burden of proof is on the deft. This seems to against the result from the nature of the plea every where; and very admr. of a clearly wherever this plea of plene administravit is allowed in an escape in common form. Any defence founded in a want of assets the lifetime ought to be made in the first suit, and before any judgment in of the intesthe case against the deft. In Massachusetts there is in fact no R. 124. such plea. In Pennsylvania, on a want of assets pleaded in an action against an executor or administrator, brought by a residuary legatee, auditors will be appointed extempore, to inquire and hear &c. In Virginia, if the deft. die after office judgment, on 1 Dall. 164. scire facias, his administrator cannot plead plene administravit. 6 Cranch 184. And on the issue, on this plea the jury must find specially, the Craig's admr. amount of the assets the executor or administrator has, to enable the court to give judgment. 5 Cranch 19, Fairfax v. Fairfax. The English law as to assets, and preference in payment of debts by executors and administrators, seems to be preserved in several states in toto, or in part, as in Pennsylvania, &c. M'Knight v. 2 Dall. 260. 18. On letters of administration granted in England, or 3 Cranch in any foreign country, an action cannot be supported in the 319, Dixon v. Ramsey. District of Columbia, or in our Federal or State Courts. See Goodwin v. Jones. a. 1, s. 17, and cases there cited. See next head. 256, Stevens, § 19. Administrations granted in other states. See a. 1, 11 Mass. R. s. 17. Assumpsit on several notes made to the plt's. intestate, admr. v. Gayagainst a citizen of Connecticut. 1st. plea, non-assumpsit ; lord. |