CH. 29. Art. 16. the two only before the rest were taken, or the process substituted for outlawry had been issued and duly returned, cited 5 Co. 119; 1 W. Bl. 20; 6 D. & E. 328; 1 Wils. 78, Symonds v. Parmenter; 1 Stra. 473, Edwards v. Carter; Left- 2 Atk. 571.— wich v. Berkely, 1 Hen. & M. 66; 1 Call. 275; 1 Saund. 1 Vez. 396. 291, b note (4,) and many cases by him cited, was answered, the Virginia practice had been otherwise fifty years. Judge Tucker held the judgment void as to the four, and being entire was void as to all, cited Ld. Raym. 600, 602; Cro. Jam. 303, King v. Marlborough; id. 304, Miles v. Pratt & al. The other judges held, as above, that the judgment was only against the two who pleaded &c., and that the caption was the mere error of the clerk, cited the Virginia act of jeofails, 1 Rev. Code, p. 111, by which one part of the record may be amended by another, and Stephens v. White, 2 Wash. 212; 8 Co. 158; 1 Bac. 164. Such a case often exists in principle in every State; see Ch. 194, a. 6, s. 22; Ch. 175, a. 8, s. 13 to 17; Ch. 176, a. 3, s. 11, &c. Toller's L. of 12.-Willes ART. 16. Pleadings and evidence &c. by executors and ad- General prinministrators. As all torts, and of course actions thereon die ciple. with the testator or intestate, his executor or administrator Ex. 131, 458. does not represent him in this respect, except on the 4 Ed. III. See Ch. 7. s. But he fully represents him in all his contracts that do not 413, 422, Solterminate with his life, whether the executor or administrator lers v. Lawis named in them or not. He may demand all his personal rence. estate and debts due to him, and is subject to fulfil all his contracts, so far as the executor or administrator has assets; and if he be not in fault, he is never "bound to pay more for his testator than his goods amount to." Executors may release 12.-1 Inst. or take releases before probate, if they prove the will after- 292. wards, so by the English law they may sue before probate. Went. Office of Ex., Ch. Before probate and before any seizure the law adjudges Plowd. 281. the property of the testator's goods in his executors; hence, if then taken by A, they may have trespass or replevin, the same as to an administrator, for an administration when grant ed relates back to the death of the intestate. Debt does not 2 Rol. Abr. lie against an administrator on the intestate's simple contracts, 399. New. R. 293, Barry v. Robinson. Allen v. Dun Each executor has the entire controul of the personal estate 2 Selw. N. P. of the testator, may release or pay debts, or may transfer any 2 Vez. 268.680, 682.part of his personal property without the concurrence of his Rastal 560.-other executors; so of administrators; so one executor may 3 T. R. 125, sell a leasehold estate, and the executorship and administra- dass. tion survive. Hence, an executor or administrator may sue or be sued accordingly, nor can a probate under which the executor acts be impeached in the temporal courts till it is repealed. Сн. 29. Art. 16, 3 T. R. 690, Rock v. Leighton.2 Selw. 695, 696. 5 T. R. 8, Cleverly v. Brett. 1 T. R. 691, 5 T. R. 6, Pearson v. Henry. All debts due and inventoried are deemed assets; but the executor may discharge himself of them by shewing they are bad, or by shewing a demand and refusal of them. 2 Selw. 695; Salk. 296. And according to late decisions in this state, executors and administrators have no concern with the real estate to recover or defend the freehold. Hence it is but very seldom they have occasion to plead in regard to the real estate in âuter droit; perhaps never, but where they sue or are sued on the covenants or contracts of the testator or intestate relating to it. Hence all pleadings by them are limited to such covenants or contracts. In England, if an executor suffer judgment against him by default, or it is found against him on plea of payment or of non est factum, it is an admission of assets, and if on execution nulla bona be returned, he is guilty of a devastavit. 1 Wils. 258, Skelton v. Hawling; 1 Saund. 219, same case; 3 T. R. 685, 686, Erving v. Peters. If an executor pay interest on a bond due from his testator, yet he may plead no assets to pay the principal, and prove the fact. But if the deft. bird himself as administrator to abide a certain award, touching a matter between his intestate and another, and the arbitrator award the deft. as administrator to pay £10, he cannot plead want of assets in this case; for by giving the bond he undertakes to pay what shall be awarded, but does he not by our law engage to pay subject to insolvency. See Ch. 29, a. 8. But a mere submission to arbitration is not of itself an admission of assets; for where the arbitrator only ascertained the amount of the demand, and without ordering the administrator to pay it, it was holden the administrator might plead plene administravit. Plea in Virginia, s. 31. These principles as to assets, hold in Massachusetts where the estate is not insolvent and so rendered. But if an executor or administrator render the estate insolvent, according to the statutes on the subject, it is conceived that such a judgment recovered against him is subject to the insolvency. Often such a judgment may be recovered against him before it is suspected the estate will be insolvent. Administrator may be sued on a plain note of hand where he has no defence, and no matters whereon to represent the estate insolvent, the court will default him. Soon after debts appear, that make the estate insolvent, it would be unjust to make him pay the whole of the judgment on the note; so if he submit to an award, it must be understood that the sum awarded to be paid shall be subject to a legal insolvency. CH. 29. Art. 16. Com. D. By the 4th of Ed. III, c. 7, adopted here, an executor, and by construction an administrator, may have trespass or trover for the goods of the deceased taken away tortiously in his life time, to recover the value of them, but not quare clausum fregit; and so is our practice. So may have replevin. So, if a bail bond be assigned to A, his executor may sue it. Cro. El. 384, Smith v. Colgay; 2 Selw. 698; Bro. Ex. 129. Pleadings by executors and administrators as such, are Toller 432nearly confined to cases of contracts, and as they generally plead 2 Ventr. 249. such pleas in substance, as their testators or intestates would, Adm. B. 13, there will be found but a few pleas peculiar to executors and Covenant B. administrators. The description of themselves and declara- 1-3 Bac. tions as plts., as well as pleas as defts., are simple and uniform in all the books. There are, however, some pleadings peculiar to them at common law, as well as by some statutes. 1. It is a rule, that the executor or administrator cannot 1 Mass. R. join in an action with the surviving promisee, not only because 104, 108, the promise survives to him as it respects the remedy, but no two or more can join who sue in different rights. § 2. When executors and administrators must or may sue as such, or in their own right; sce Ch. 9. a. 19, Auter Droit. So as to joining matters. Abr. 91. Walker v. Maxwell. Like case 3 Salk. Inst. Cl. D. 18, 30, 31. 5 Com. D. 53.-1 Com. Pl. 2, D. 1. 3. It is a settled rule, that all the executors and adminis- 9 Co. 36 to trators must join in bringing the action, or be joined if sued. 42, Henloe's As where debt was brought against two executors, who pleaded case. in abatement, that one H. was made executor with them, who 163, 164.had administered &c., not named in the writ. Replication that 2 Saund. 213. H. refused &c. and that the defts. alone proved the will. Defts. demurred; judgment for them. For though H. had refused, yet he might afterwards administer at his pleasure; for when some of the executors prove the will and some refuse, and the will is however proved, the latter may come in; but if all refuse, administration may be granted, and they cannot come in. The reason is, when one proves the will, it is proved, and the party dies testate, and the executor who proves ought to name those who refuse, in every action he brings, and they have actions by survivor. But if all refuse, the party is dead intestate, and they can never administer as executors. This is the law in England, and in the States in which the English law is in this respect adopted. But the law in Massachusetts is not so, by that an executor cannot be said to have administered till he gives bond, and after he has refused, he cannot come in; hence he may not be named in the writ. And in this case even in England, A. D. 1790, one execu- 3 T. R. 557, for named in the will was not joined, yet held good, because Rawlinson v. Shaw, exr. he did not prove the will and did not administer. But this was not pleaded in abatement, but in bar; and the executor who CH. 29. Art. 16. refused was a creditor. And in this case Grose J. said, "it is laid down universally in all the authorities on the subject from the year books down to the present time, that a deft. who is sued as executor cannot plead that another person is also executor with him, unless he avers that that other has Cites 1 Lev. administered." "And the case of Swallow v. Emberson is directly in point ;" and the reason is the same whether plt. or deft. 161. 2 Selw. 701, Foxwest v. Tremain. 2 Saund. 212. 2 Selw. 685. Feb. 6, 1784, 201.-2 Selw. And all of the executors must join in the action, though some of them be infants, and those of age may appoint attornies for those under age. And if one be of age and the other not, the former is appointed administrator, durante minore ætate of the latter. At common law, an infant executor was of age at 17, but by 38 Geo. iii. ch. 87, s. 6, not till 21, if sole executor. As to the rule actio personalis moritur cum personá, &c. see 13 Mass. R. ch. 7, and as to executors and administrators promising to pay 708, Swallow the debts of their testators and intestates, see chapters 9. and r. Emberson. 11. By our statute, if several be appointed executors. none -1 Lev. 161. can intermeddle as such, but those who actually give bonds. 4. Rule: the plt. need sue only such executors as do administer. Therefore, if the defts. sued as executors plead in abatement that there is another executor not named in the action, they must add that he has administered; "for the plt. is bound to take notice of such executors only, as have administered." Though executors cannot sever in declaring, they may in pleading: hence, though infant executors may sue by attorney with executors of age, because those of full age may Frescobaldi appoint attornies to those within age; yet they must defend by guardian. Stra. 783, v. Kinaston. 2 Selw. 708. If any of the cxecutors die, the action must be brought against the survivors; and if there be two or more administrators they must all be sued. The form of the plea is that one not named administered. But if an administrator be not sued, the one sued need only plead the other was appointed and is 3 Inst. Cl. 53. alive. He cannot be appointed, unless he accepts and gives bonds, and then he is completely administrator. If one summoned and severed die, the writ does not abate. Story's Pl. 2. Toller 446. 2 Saund. 291, notes of Williams. Cro. Car. 420. Story's Pl. 4. Francis v. Winu. 5. Rule: if there be two or more executors, and one not sued, it can only be pleaded in abatement. 6. Rule: if there be two executors, and one refuses to sue, the one may sue in the name of both, and have summons and severance. Principle of Ch. 1, a. 6. § 7. If one be sued as executor and pleads never executor, he must add, and that he never administered as such, upon any of the goods and estate, &c.; and the plt. need only reply that he did administer upon the goods and estate, &c.; for CH. 29. Art. 16. the deft. is liable to be sued as executor, if he be only executor of his own wrong, by administering only. Plea, never executor, ought regularly to be in bar. And if two be sued as executors, one of them may plead, the other was dead when Story's Pl. 41. the writ was sued out; for the writ was bad, and void ab ini- Waters v. Ogtio, and this is matter in abatement. If an executor, &c. be sued in several actions, he may plead plene administravit, spe cially; see the manner, Doug. 452. den. $ 8, The plea of plene administravit, in England, and See Insolvenwhere this plea applies, is important, concerns many cases, cy. and is attended with many nice distinctions and difficulties; several of which are stated, 2 Selwyn 709, 716. The general rule is, that an executor may plead in bar the same plea his testator might have pleaded, as in assumpsit," that his testator never promised," or in covenant, or debt on bond, "that it is not the deed of the testator." So he may plead " that he has fully administered all the goods and chattels which were of the deceased at the time of his death." So he may plead an outstanding debt, as a judgment, &c. And the same rule holds in regard to administrators. But in Massachusetts, this plea does not often apply; nor is it recollected that it has ever been pleaded here; because here the executor or administrator, if he has no other plea in bar, must pay all the debts of the deceased, or render his estate insolvent; and if insolvent, all debts of whatever nature, with the special exception in the statute, must share alike, including debts due to the executor or administrator himself. A gets judgment against a sheriff for an escape; debt on Toller, 459. it lies by A against his executor. So debt on a judgment --Dyer 322. lies against him on Massachusetts statute of Feb. 26, 1796. 9. Nor does the doctrine of retainer apply here, for the same reason; the executor or administrator must pay all debts, then he has no occasion to answer another creditor by the plea of retainer; and if there be not estate enough to pay all, he must render it insolvent, and except as above, pay all in proportion. And if his own demand against the estate of the deceased be disputed by the heirs or others concerned, it may be referred according to the act of the State. In England he 1 Esp. 288. may plead a retainer, or give it in evidence. 10. As to the statute, the executor or administrator may plead the deceased never promised within six years before the commencement of the action; or the more proper plea is actio non accrevit infra sex annos. And there seems to be but one distinction peculiar to executors and administrators, in this respect, and that is, if the action accrued to the deceased in his life time, it must be commenced within six years from the time it accrued, though part of the time there may have been |