2. In practice on these clauses several questions have arisen: 1. When is a suit depending in court? 2. What action survives? 3. Does it extend to administrators de bonis non? CH. 29. Art. 7. § 3. As to the first point. In this action of assumpsit the Cir. Court of the U. S. at plt. died before the action was entered, but after the writ was Boston, June sued out. And the court admitted the administrator to come 1795, Garin and enter the action, and would have notified Gray by scire diche v. Gray facias to come in and answer, but his counsel took notice. And it was held, the action is pending in court from suing out the writ. Did he die before the writ was served? Issuing the writ is the commencement of the action &c. § 4. In this case in the year 1793, there was a decision, that 3 Johns. if the party died before the entry of the action, and after ser- Ca. 145, 149, Stone, adm. vice the administrator might come in; and see 3 Cranch 193. v. Pickman & The plt. died and his executor came in. He must produce his al –3 Cranch. letters testamentary if called for, but not allowed a continuance. 193, Wilson Upon this question of pedency there have been different exr. decisions in England. 5. In this case the court held, that where a writ issues 5 out of one court, as Chancery, returnable into another court, as the Common Pleas, the suit is not pending in the Common Pleas &c. till the writ be returned there. But that where it issues out of, and is returnable into the same court, it is pending before the return or service. And in Croke it is said, a writ is pending as soon as it is sued out. 6. Second question. It may often be doubtful what action survives, not in any case of actio personalis cum moritur persona. This point rests on the common law authorities; and whenever the action dies with the party, as in all cases of tort, the executor or administrator cannot come in. See Actio Personalis &c. Ch. 7. v. Codman's Co. 48, case of Littleton. 1 Cro. 671. -2 Cro. 11. —F. N. B. 140, Notes.Bac. Abr. 218.-3 Wils. 5 58.-Far. R. 5. § 7. Third point. It has been uniformly held, that if an Mass. S. J. Court, Essex executor or administrator die pending the suit, the administra- Nov. 1797, tor de bonis non cannot come in; for the statutes do not ex- Swett, adm. tend to this case, and even though he offers to come in. Rem- . Prince. edy by a new statute, Feb. 1813, and A. D. 1818. 133. al. v. Caritat. 8. The deft. may plead, that prior to suing out the writ, 3 Caines' R. he settled with the plt. the debt. This is good as to time, for 2 Johns. R. this suing out the writ is the commencement of the action, and 342, Bird & the cause of the action must be alleged to have arisen before 3 Johns. R. this suing out the writ; and if the declaration relate to the 42, Cheetham preceding term, and the cause of action be after, there must v. Lewis.— be a special memorandum, entitling the declaration at the time 110. it was filed, 14 East 539; 18 Johns. 14. ART. 8. Several other cases decided on American statutes &c. 1. In this case it was decided, that if an administrator 10 Johns. R. 5 T. R. 6, Pearson v. Henry-Stra. 1144, post. CH. 29. Mass. S. J. Court, Wor cester 1782, Divol, adm. de bonis non of Tulatt v. Com'rs. of Lechmore. submit to an award, he does not thereby admit assets. And a general submission to an award includes a demand as executrix, so as administrator; see Ellilson v. Cummins. See Insolvent head. § 2. Change of property. In this case Lechmore, the executor of Tulatt and residuary legatee, gave bond in the probate office to pay debts and legacies, and took into his hands the estate of Tulatt, his testator, and used it as his own. The court decided, that when he had done this he had administered on the estate, and the testator's cattle &c. had become Administra- the property of Lechmore, and so was changed. This was der an inven- held, in this case in which Divoll had taken administration de tory of the bonis non on the estate of Tulatt, and brought this action of whole estate, trover to recover the cattle in question as part of Tulatt's though claimed by a third estate, not administered upon. On the same principle, where person, who the administrator takes to his own account the personal estate may still try his right, in the inventory, and submits to be accountable for the amount Kirby 101. of the inventory, he makes this personal estate his own. tor must ren Mass. S. J. § 3. An administrator must pay interest on a distributive Court, 1785, share. In 1778, Low, administrator of Symonds' estate, renEssex, Sargent, adm. of dered it insolvent, and the judge of probate made an order of Leveret v. distribution thereon. Low, the administrator, paid some of Low, adm. of the creditors but not all; nor did he offer to pay Mrs. Leveret Symonds. 1 Esp. 140, 219. her part in her life time, or to the plt. her administrator after her death, but Low kept the paper money and brought it into court in this action on the clause in the Massachusetts depreciation act respecting trustees. The court decided, first, that Low, as the administrator of Symond's estate, ought to have tendered to each creditor his proportion according to the order of distribution. Second. That the damages must be ascertained by the value of paper money when the order of distribution was made. Third. That interest should be paid from the time of making the order of distribution, for then a certain sum became due and payable. 4. There never has been a question in this state but that assumpsit lies by and against executors and administrators, and there is here no wager of law. And in declaring against an executor or administrator the plt. need not state assets; and he is never chargeable beyond, unless he pleads an improper plea. Essex 1789, § 5. An executor or administrator may be trustee by conManning . sent, but see post. In this case, Story owing the plt. a debt, failStory &. ed, and Mary Wainwright owed Story a debt. She died, having his trustees. made Elizabeth Wainwright (now Mrs. Clark) her executrix, and left estate sufficient to pay all debts. The plt. sued Story, and he summoned Clark's wife as his trustee on the Massachu Clark & ux., setts provincial trustee act, she being then sole. Pending this action Story sued her as executrix, and reduced the debt to a judgment. Then the plt. got judgment against Story, and against her as trustee by default. She married Clark, and now the plt. brings scire facias against Clark and wife. Judgment for the plt., that he have execution against her and her husband for the damages and costs on these grounds. First. Though said executrix owed Story on judgment, yet this debt was thus attachable, he having no remedy against her, but a future action on his judgment against her for the debt she owed him. Quære, if he had been entitled to an execution on his judgment. Second. She was trustee to Story, though she only as executrix owed him, that is, in âuter droit; it being well understood that the estate she represented was fully solvent. Quære, if she had left the question of insolvency open. CH. 29. Art. 8. 6. In this case it was held, that a debt due to the estate 3 Wils. 297, of the plt's. intestate, or due to the plt. in âuter droit, might Fisher, adm. be attached on foreign attachment, and so taken to pay a debt that estate owed to a creditor of it. v. Lane & al, 1793, Essex, adm. 7. A debt indirectly sold by an administrator. In this Mass. S. Jud. case a debt of £105 was due to Thomas Reddin, the plt's. Court, Nov. intestate, from Moses Hawkes, the deft's. intestate. Oct. 7, Reddin, adm. 1788, a former administrator on said Thomas Reddin's estate v. Shute, sold his debt to Shute by deed, who then was not administrator of, or any way concerned with, Moses Hawkes' estate, so then could not take a release of it. But afterwards Shute took administration on Hawkes' estate, and when sued as his administrator, as administrator of the debtor by the administrator de bonis non of the creditor, pleaded this deed as a release of the debt, and had judgment. And the court held, first, that though Shute was not capable of a release Oct. 7, 1788, when the deed was made, being a stranger to the debt and the debtor's estate, yet afterwards becoming his administrator he might plead the deed as a release by relation; though objected that a deed which was no release when made, and took effect, could not by subsequent matter or facts be turned into a release. 2d. That if there be proof a deed was signed and sealed, possession of it in the grantee is evidence of a delivery, unless it be proved he came fraudulently by it. 8. In this case it was decided, that if A give a note to B Mass. S. Jud. and die, and A's administrator make payments on it to the Court, Suffolk, Wells v promisee, before A's estate is rendered insolvent, not endorsed, Gray, adm and the whole note is allowed to B by the commissioners, and an order of distribution for the whole, and B brings an action on this order, A's administrator may prove these payments, and CH. 29. Mass. S. Jud. Pool. thereby lessen the sum ordered by the probate decree, to be paid to B. The conclusion from this case is, that the probate decree is not conclusive as to the debt decreed; for if it were, this debt, so decreed, could not have been reduced by this evidence. But this is the only case of the kind recollected. 9. The court held that if an annuity be given to A, to be 1797, Pool v. paid by the devisees in the will, the action must be brought against them, and not against the executor; and the declaration must state the devise and annuity, that the devisees accepted the estate devised to them, subject to the annuity, &c. and that the executor is not liable. Mass. act, --1 Salk. 79.-3 T. R. 618. $10. Contracts when there is a trust. By this act, the Mar. 10,1784, treasurer of proprietors of lands in common and undivided, may sue for all debts due to them. If A take a bond in trust for B, it is not assets in his executor's hands. The plt. may take a bond in trust for party's wife and sue it. And if a bond be made to a Dean, Bishop, Parson, Vicar, &c. their executors shall sue it. 1 Mass. R. 35, Henshaw, judge &c. v. Blood & al. 204, Prescott, judge, v. Tarbell. 1 Mass. R.1,4, Goldv. Eddy, admr. 1 Mass. R. 200, Dana, Prescott, admr. § 11. Administration bond, the extent of it. In this action the court decided, that an executor or administrator is not bound by his bond to inventory the real estate; for though by the statute the administration is on the goods and estate, yet the condition of the bond is to return an inventory of the goods and chattels, rights and credits" of the deceased. See also the chapter respecting Insolvency. This condition is not consistent with our statute of March, 1784; for that expressly requires an inventory of the whole estate. 66 Nor is an administrator or executor entitled to costs for travel and attendance, before he actually comes into court to prosecute or defend the suit commenced by or against his testator or intestate. By the act of 1818, the real estate is inventoried. 12. Nor can executors or administrators refer before the judge, but by statute. In this case the court held that the executrix, v. reference entered into before the judge of probate, by the executrix, as to her demand as executrix, against the deceased's estate, was void, and generally " that the judge of probate had no authority to allow a reference of any demand which an executor or administrator, as such, has against the estate of the testator or intestate." In this case, Anna Dana, the appellant, was executrix of the will of Samuel Dana, and he was executor to the will of Jno. Bulkeley, jr. and the demands referred, were the accounts of said Samuel, as such executor, with said Bulkeley's estate. 1 Mass. R. 502, Blossom 13. In this case it was decided that if after an executor v. Goodwin, is sued, he represents the estate insolvent, he is not entitled to admr. a continuance of course, but must go on to trial if the court CH. 29. think proper, &c. See Insolvency. Art. 8. § 14. Held that if an administrator corruptly neglect to oppose illegal claims against an insolvent estate, he is liable to an 2 Mass. R. 80. action by the injured party; but that the probate court cannot Parsons v. reject the report of the commissioners on this ground. Mills. 15. The court decided that if a naturalized citizen die 1 Mass. R. without heirs here, and his administrator have in his hands 292, Dorr's money of his, he will be decreed to pay them into the state treasury. case. 654, Mitchell § 16. Held, if the creditors of an intestate recover judg- 4 Mass. R. ment against his estate in the hands of his executor de son v. Lunt. tort, he cannot extend his execution on the intestate's lands. He is not such an executor as the law intends, when it makes the lands of the deceased liable in the hands of his executor or administrator for the payment of debts. 611, Grout v. 682.-7 T. R. Saund. 720. 17. No privity between an executor and an administrator 4 Mass. R. de bonis non &c. As where the executor of A's will recov- Chamberlain. ered an erroneous judgment, it was decided that B, an admin- -2 Selw. istrator de bonis non, with A's will annexed, could not have a 182.-See ch. writ of error; for there was no privity between this executor 190, a. 3. and B, such administrator; and that this judgment &c. recover- Yare v. Gough.--Cro. ed by the executor, is no bar to an action to be brought by such Car. 167, administrator for the same cause; for he is a stranger to the Snape v. Norjudgment; nor can such administrator execute such judgment; gate.-2 nor a succeeding administrator, a judgment recovered by a -1 Salk. 323, former one and the judgment recovered by the executor on Clerk v. a bond, is no bar to an action of the administrator de bonis non, with the will annexed, on the same bond: and that the statute of 17 Ch. II, ch. 8, is not adopted in this state but quære if not adopted here; for certainly, judgments recovered by former administrators, have been enforced and sued by administrators ne bonis non, and this act is as useful here as in England; and reasons as strong have existed for adopting it Com. D. here, as for passing it there. The effect of this decision is Toller, 447, done away, by a new statute of February 1813, and A. D. 448, 449. 1818. Withers. Admr. G. -- 18. Held, an administrator may have trover against a 6 Mass. R. stranger, for the conversion of a title-deed of the plt's. intes- 394, 396, Fowle, admr. tate committed in his lifetime; though urged that the heir v. Lovitt. ought to have had the action, for here lands are assets in the hands of the executor or administrator, on a deficiency of personal estate. He defends on eviction &c. 390, Storer § 19. A. D. 1768, Jno. Storer died, and Joseph Storer 6 Mass. R. administered and died; plt. took administration de bonis non, admr. v. Storon the estate of said John Storer; defts. became administra- er & al. tors of said Joseph Storer's estate, and 1798 settled an admin- See post, a. admrs. 16, s. 22. |