CH. 29. Art. 4. 11 Mass. R. v. Potter. 2d. in bar, resulted in an issue to the jury, whether the intestate when he died, had his residence in that state-found for the plt.; 3d. plea alleged that after the intestate's death, and before the commencement of this action, and before the pit's. appointment as administrator &c. by the judge of probate, for the county of Berkshire, administration was granted to the deft. L. B., in Connecticut, on the intestate's estate, and states how, and there gave bonds &c., and inventoried the debt demanded &c. Plea held good. Also, held, it is not material in such plea, to aver the deceased had his home in Connecticut ; nor is the time of granting the respective administrations material. And if in fact the intestate had his home in Connecticut, his effects must be distributed here, according to the laws of Connecticut, or transmitted thither for distribution by the administrator there. In this case several important points were settled. 1st, Granting administration is not confined to the state or county in which the deceased last dwelt: 2d, Administration granted here &c. is merely ancillary to the principal administration granted where he last dwelt: 3d, But not necessary this precede: 4th, The distribution is according to the laws of the place where he last dwelt, or had his domicil, at his decease 5th, The administrator appointed in a state, must collect the debts of the debtors, in it residing 6th, The appointment of the debtor (deft.) administrator in Connecticut, to the creditor, discharged the action given originally by the contract, and is a bar to the present action; especially as the deft. acknowledged the debt in his inventory in Connecticut. Debt on judgment of Massachusetts S. J. Court, commenc313, Langdon ed in the Common Pleas, by administrators appointed in Con& al. admis. necticut. After issue joined, deft. objected the plts. had no letters of administration but those granted in Connecticut. Held, this fact could not be decided on such objection, but must be pleaded in bar, on proper leave granted. The general principle is, that all rights to the testator's personal estate are to be regulated by the laws of the country where he lived; but suits for those rights must be governed by the laws of the country in which the action is brought. 3 Cranch 319, Dix 12 Mass. R. 199, Winship v. Bass. & al. 12 Mass. R. on's case. 20. Held, 1st, naming a debtor executor, and his accepting does not extinguish the debt; 2d, his probate bond covers it; hence 3d, his declining to account for it, is no cause of removal; 4th, the judge of probate has power to remove any one of several executors, for good cause, on the statute of 1783, ch. 24, s. 19, and the rest execute the trust. § 21. Held, 1st, an executor cannot refuse the trust after 358, Sears, he has proved the will and given bond; 2d, he is not a witlingham & al. ness to the execution of the will, or the testator's sanity, after agent, v. Dil Cн. 29. Art. 5. accepting the trust, his liability to costs is a good objection; 3d, if he be one of the three witnesses, the will may be proved by the other two, as he was a competent one when he attested it, and is incompetent only by accepting the trust. ART. 5. When is the action suspended or not? 1. By 9 Co. 36, 42, our law, the executor must accept and give bond, or refuse. Hentois' If he refuse, he is as if he never had been appointed, and R. 559.may be sued or sue accordingly; for one is no more executor Jones 345. without his assent, than one is obligee or obligor in a deed, without his assent; and by our law, after an executor has refused, he cannot come in. case.-3 T. Abr. 278 to 2. But if the person appointed executor, accepts the trust Sullivan, 113. and gives bond, then he is executor; and if executor of the 1 Salk. 299, 309, Wankcreditor, cannot bring assumpsit, or any other action against ford v. Wankhimself, as the debtor, or against himself and others as debtors ford.-1 Salk. on a joint, or on a joint and several contract; or unless he 163-2 Bac. himself be insolvent against one of them on the latter contract. 281. And this also is the administrator's case. So if the creditor make the debtor and another executors, for they must join, and they cannot sue one of themselves, as this debtor. Administrator pendentu tite as to a will, may bring actions. 2 Stra. 219. 560, A & J. 3. Assumpsit and eight counts on the promises of the 3T. R. 557, said Woodhouse, and a ninth count on the promise of the deft. Rawlinson v. as executor. To the said eight counts the deft. pleaded that Shaw, exr. of the testator made his will &c.; and appointed the deft. and said Woodhouse. J. Rawlinson, (one of the plts.) and three other persons joint executors &c. To the ninth count, that the promise (if made at all) was made by the deft. and J. Rawlinson, and said three persons, and not by the deft. alone, the plts. replied, that J. Rawlinson never proved the wiil of the said Woodhouse, and never administered, &c. And as to the last plea, that the promise was not made by the said deft., the said J. Rawlinson, and the said three persons; demurrer to the first plea, and joinder. Judgment for the plts. Lord Kenyon said the argument was for the deft.; "that if A owe B a sum of money, and choose to make him his executor, though B will not act, his legal remedy is extinguished." This could not be true; otherwise, had J. Rawlinson, the creditor, accepted as executor to the debtor. 4. If the obligor make the obligee and another his exec- Jones 345, utors, and the obligee renounce the executorship, he may sue Dorchester r. the other executor; for he alone is executor, and the obligee nised, 3 T. is as he was, simply a creditor. Webb, recog R. 559. 5. A consented the deft. should have certain goods left by 1 Salk. 295, B, deceased; and afterwards A administered on his estate, and Whitehall v. Squires. held he could not maintain trover against the deft. Carth. 104; 4 East 447. Сн 29. See Art. 2, ante. 5 Co. 34, Read's case. Swinb. 448. v. Priest, 597. 387. Cro. El. 102, § 6. A stranger is made executor with £50 legacy; he has not the residuum, but must account for it. Matthews v. Courthope; 3 Salk. 82; 1 Wils. 285; 1 Stra. 568. ART. 6 Actions against an executor of his own wrong. § 1. By our law he is one who alienates or embezzles the goods of the deceased, before he takes administration and renders an inventory. The first part of this provision is correct; the latter uncertain, for by the act he need not render an inventory till three months after he is appointed; yet in that time it is very often necessary to alienate some of the deceased's goods. -2 T. R. 97, The old books describe him as a person, who, without any au100, Pagget thority from the deceased or the judge, does such acts as belong Office of Exr. to the office of an executor or administrator. As if he possess 171.-2 Bac. and convert to his own use, the deceased's goods; or out of his assets pays his debts; sues for and recovers debts due to him; or does any act of acquiring, possessing, or transferring the deceased's estate; for by this only, can creditors know against whom to bring their actions; or when he takes and uses them. So by releasing debts due to the deceased, or by 114, 120.Dyer 166, paying legacies out of his effects. So by taking a specific leg255-2 T. R. acy without the executor's consent, by delivering too much to 587, 597, Ed- the widow, or by answering to an action against him, except bin.-2 Selw, never executor. So if the wife take too much apparel, she is 689-4 East executor in her own wrong. So one appointed to collect the goods of the deceased, if he sell even perishable goods, by express order of the judge; for he can give no such order. So if one claim to be and act as executor, even where there is a rightful one. So taking the deceased's goods under his bill of Toller's Law sale that is void. So if one die intestate, and A takes his goods of Exrs. 364. and uses or sells them; otherwise, if this be after there is a lawful executor or administrator, for when there is such, the deble r. Osbas ceased's goods are assets in his hands, and A's taking them &c. ton. Esp. is a trespass, and he is to account. But though there be such an executor or administrator, yet if A take the goods, claiming as executor, receive and pay debts, and act as executor, then for such express administration, as executor, he is one of his own wrong. So if there be a rightful executor, and before he proves the will, A takes the goods &c., so receives a debt, this makes him executor of his own wrong. wards v. Har 441. 3 Mass. R 296, Thayer v. Bond, admr. -4 East 441. -Salk. 313. Hob. 49, Ki 290.-2 Dyer 166, Stokes v. Porter. 3 D. & E. 5S7. 5 Co. 31.Imp. 34. 3 T. R. 588. -Dyer 166. -2 Bl. Com. 507,509 § 2. In all these and many other cases, where one is executor of his own wrong, he is liable to be sued in assumpsit and other actions, as the executor of the last will and testament of ; and there is no other form. And "he is chargeable with the debts of the deceased, so far as assets come to his 1 Esp. 289.Bul. N. P. hands." And as against creditors, generally, he shall be al48, 91, 143.-lowed all payments made to any other creditor, and allowed in mitigation of damages; and generally is liable to the value of the goods he takes; but he cannot retain for his own debt; Toller's Law of Exrs. not even by consent of the legal executor, given after an action is brought by a creditor; but on taking administration he may retain. But this executor of his own wrong may avoid an action by delivering the goods before he is sued, to the legal administrator; but not afterwards. Lord Raym. 661; 1 Mod. 208: 1 Esp. 289; Stra. 1006. CH. 29. Art. 6. R. 588.-2 H. 3. Or he may by taking administration himself before he Vaughan v. is sued. But if previously sued, the plt's. writ shall not abate, Brown, 3 T. Andrews' Reports 328; Sid. 76; 12 Mod. 441; he may Bl. 18. retain if he pays a debt. How his taking administration purges all wrongs, Ch. 190, a. 4, s. 31. 471.-4 East § 4. If the legal executor bring trespass against a tort exec- 12 Mod. 441, utor, he may give evidence of the payment of just debts in per Holt C. J. mitigation of damages; yet the right of the action and the 441-3 D. & verdict must be against him, and if he pay a just debt with E. 588.the goods of the testator, the rightful executor shall not avoid, but have an action against the tort executor, and recover so -1 Mod. 213. much as he has misapplied only. 2 H. Bl. 18.Swinb. 337. 507.-3 Salk. Ex'rs. 5. But he is not such executor or liable to be sued, if he 2 Bl. Com. merely take care of the deceased's funeral ; or pays his debts 161-1 Com. or legacies, if out of his own money; or feeds his cattle, or D.361.-Tolmakes an inventory; or repairs his houses in decay, provides E 39 &c. necessaries for his children, and does other acts of mere kindness; nor if he comes into possession of the deceased's property by colour of legal title, though he has no complete title, 1 Esp. R. 335. Priest & Por § 6. But the plts. as creditors of W. Shore brought as- 2 T. R. 97, sumpsit against the defts. as his executors. Shore in his life 100, Pagget v. time had goods in his cellar, and asked Porter, one of the ter, exrs.defts., to send a person to take care of them. Porter sent 1 Salk. 313.1 Saund. by Payne, his servant, who sold beer as well after as before Wms. 265.Shore's death by his order. Payne paid into Porter's hands Peake's N. P. the produce of the beer &c. sold after Shore died. Held, 86. Porter is an executor de son tort, but that he would not have been liable, if before he was sued he had paid the money to the lawful administrator of Shore's estate; though his so paying it after sued would have been no excuse. In this case, See 3 T. R. Porter, without authority, by his servant sold Shore's beer after Bl. 18, Curtis his death, and after his death, his order was void. But an v. Vernon. executor de son tort cannot, after an action is brought against him by a creditor, discharge himself by delivering the effects to the rightful executor; I Salk. 318, Churchill v. Hopson. 587.-2 H. Coate v. Al § 7. Assumpsit for work and labour done for the testator 4 Maule & and money counts. Pleas, non assumpsit, and ne unques ex- Sel. R. 175, ecutrix, deft. executrix de son tort by intermeddling under drich, exr. power ended. As where C. Aldrich appointed A, B, and C, his executors, and died. A proved the will, reserving a pow CH. 29. Salk. 311, v. Petre. Kirby 39, Kirby 391, 1 Caines' Ca. man v. Coe & al. er for B and C to come in; A gave a power to C and the deft. (sister to him and the testator) to act for A. She acted in administering the testator's estate till A died; he left her and D and E, his executors, who proved his will. Deft. after A died continued to administer C. Aldrich's estate, consulting and acting under C's advise. She proved under a bankrupt commission a debt due to C. Aldrich's estate, claiming as executrix of A, so under his power as he was dead. Held, she was not executrix de son tort while A lived; but was after his death, as thereby her power terminated, was not executrix of C. Aldrich as executrix of A, as there were surviving executors of C. Aldrich; as if there be two executors and one proves the will and dies, the executorship survives to the other, but if he then renounces, the testator is dead intestate. And after one has proved it, till his death the other cannot renounce. 8. Administrator liable for interest &c. on an insolvent estate after the average is struck, in his own right; for it is his own fault he suffer it to accrue. 9. If an administrator refuse to add to the inventory newly discovered estate, the creditor's remedy is on the probate bond, not to sue the administrator, where the estate is regularly proceeded with as insolvent, especially if such creditor has exhibited his claim, and had it allowed by the commissioners, though further estate is discovered and no average struck. § 10. Executor &c. robbed. Held, if an executor or trusin E. 96, Fur- tee be robbed of money he received, he shall be allowed it on account, the robbery being proved, though the sum is only proved by his own oath; and if dead, his executor or administrator may avail himself of the circumstance though it want the said oath. If the mortgagee assign the debt &c. no interest or assets pass to his executor or administrator, Crosby v. Brownson. 1 Day's Ca. 425. United States Act, Sept. 24, 1789, sect. 31. See Ch. 171, a. 13, s. 15, Replevin. A. D. 1818. Mass. Act, 1784, sect. 10. 247.-Add. Act. Feb. 26, 1813. A. D. 1818. ART. 7. In pending actions, when and how executors and administrators come in. 1. By this act of Congress it is enacted, that "when any suit shall be pending in any court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party who was plt., petitioner, or deft., in case the cause of action doth by law survive, shall have full power to prosecute and defend any such suit or action until final judgment." In the statute law of Massachusetts there is a like clause, from which this in the United States law was copied. There was a like clause in Massachusetts Province law, passed A. D. 1727. In this case executors and administrators come in and prosecute and defend actions, commenced by or against the deceased. |