administration, and pleaded in abatement that Barber is not, nor ever was administrator &c., but that said Ruth is sole administratrix &c. Plts. replied their intermarriage, by virtue whereof the said B became administrator in right of his wife and traversed, said Ruth is sole administratrix, and tendered an issue to the country; the deft. demurred, and joinder. Respondeas ouster awarded, and the court said, "where a feme sole is executrix or administratrix jointly with one or more persons, and afterwards intermarries, her power" is by statute of 1783, c. 24, sect. 19, extinguished. "But where the wife was sole administratrix, by the marriage her husband became joint administrator with her." Same as to an executrix. CH. 29. Art. 16. Weeks v. Gibbs. 24. This was replevin for goods seized by the deft., a 9 Mass. R. 74, deputy sheriff, on an execution on a judgment recovered against the goods and estate of James Lombard deceased, in the hands of his administratrix. She afterwards married the plt. Before the marriage and before the seizure by the officer, she had inventoried the goods, and settled an account of her administration, “charging herself as administratrix with the personal estate of the deceased, inventoried and appraised as by law provided," to the amount of $567 87. Her charges of probate fees, debts paid, &c. were $108 48. Held, the intestate's goods in her hands were liable to be seized on this execution, as she had not paid his debts to the amount of the inventory. It was agreed, if the wife acquired a property in the goods, they became her husband's by the marriage, and he rightfully replevied them; but held, she did not, merely by charging herself &c., for she might still have caused them to be sold at auction, and the goods on her death being distinguishable and known as her intestate's, would have gone to his administrator de bonis non. 25. A rightful executor or administrator in this respect ought to be on as good ground as an executor de son tort, and it is settled, he "may discharge himself even against the demand of the rightful administrator, by proving debts paid to the amount of the goods received, which had belonged to the deceased. Plt. nonsuit. But what is meant in this case by the administrator's paying the intestate's debts to the full amount of his goods? Suppose he leave no estate but $500 in goods, his administrator pays his debts to the amount of $400, having inventoried the goods, settles an administration account, and the goods remain in specie and known as having been the intestate's; shall a creditor of the intestate extend his execution on the whole of them, and his administrator lose the $400 he has paid? Shall he have no remedy but seasonably representing the estate insolvent? Or shall he retain to the amount of $400, the sum he has paid? I understand the ex CH. 29. Mass. R. ecutor de son tort may so retain; but there is no difficulty in this case, the executor de son tort may have paid creditors 20s. in the pound, and yet the estate may be insolvent, and not enough left to pay the other creditors Is. in the pound, if this executor may retain to the full amount of what he pays, which seems to be the principle; and in his case there is no probate bond to be resorted to. On the whole, the true rules are: 1. If the estate of the deceased be solvent, then for such executor of his own wrong to retain as much of the deceased's estate as he pays its creditors: 2. But if insolvent, then for him to be in the shoes of the creditors he pays, and retain as much as they, if not paid by him, would have been entitled to in settling the insolvent estate, considering him as assuming their debts against it; and taking upon himself their claims. These are the rules in principle and practice as to rightful executors and administrators. 26. Assumpsit on a note made by the deft. to two per334, Smith v. sons, executors, for a debt due to their testator. One of them Whiting jr. endorsed it to the plt. These facts appeared in the plt's. declaration. The deft. demurred to it, and had judgment. The promisees not being copartners had each but a moiety, so one could not assign the whole, nor his moiety alone. 11 Mass. R. v. Fairfield 27. In assumpsit brought by an administrator de bonis non, the promises may be said to have been made to the former or first administrator. $28. Assumpsit against an administrator. The plt. in his declaration stated, that the promises were made by the intestate in his life time; and by the deft., "administrator as aforesaid," since the death of the intestate. Declaration held good, especially after verdict, it being tantamount to alleging that the promise was made by the deft. as administrator. It might be good considering the deft. merely as acknowledging as administrator the intestate's promises; but not good as a promise de novo by the administrator to bind the intestate's estate, for reasons elsewhere stated at large. § 29. Held, the administration bond does not cover the administrator's neglect to procure a license to sell the real estate of the intestate for the payment of his debts. Special pleadings. The administration bond does not extend to the real estate, nor include the provision of the statute of 1783, Ch. 32, s. 8, as to waste by neglect to raise monies &c., act 1818. 30. Administrator's sale by license of Court of Common 227. Perkins Pleas. Title under it held good against the intestate's heirs, though the license was granted upon a certificate from the probate judge, not authorized by the circumstances of the case. If erroneous, it is not to be corrected at the expense of the purchaser, who relied on the order of a competent court. It is not to affect him, that enough was before sold, or the administrators neglected to give bonds to account for the sale. CH. 29. Art. 17. v. Fairfax. 31. Plea, plene administrarit and issue. Held, the jury 5 Cranch 19, must find specially the amount of the assets in the executor's Fairfax's exr. hands; secus the court cannot give judgment on the verdict. In this case several authorities were cited by counsel to shew that the judgment must be for the whole sum, if the verdict find any assets, as 8 Co. 34, Mary Shipley's case; Cro. El. 592, Waterhouse v. Woodstreet; Styles 38, Gawdy v. Ingham; Freeman 351, Oxenden v. Hobdy; Bro. Execution pl. 34, pl. 82; Godbolt 178, Newman v. Babington; Cro. Car. 373, Dorchester v. Webb; Lex Test. 414. But the chief justice, Marshall, observed, in giving the opinion of the court, "that these cases had been overruled, and that an executor is liable for the amount of assets in his hands and no more :" 2. After judgment below, the deft. married; held, sufficient to serve the writ of error on her husband. And if an executor confess judgment when sued on his executorial bond, in order to sue him and his securities for a devastavit, he cannot Worsham apply to a court of Equity for relief, on the ground he has M'Kinzie. fully administered. $32. And in Virginia if a deft. die after office judgment, 6 Cranch his administrator on scire facias cannot plead plene adminis- 1842 travit. 33. An executor or administrator may make his own estate liable, by knowingly pleading a false plea, as never executor, or a release to himself, or knowingly any false plea, which if true would perpetually bar the action, and it is found against him, judgment de bonis testatoris et si non de bonis propriis. M'Knight v. 1 W. Bl. 400. -Off. Ex. 185. Merchant, ART. 17. Where liable and entitled to actions, though the tes- 3 Burr. 1380, tator or intestate was not. § 1. A covenants his executors shall Plumer . pay monies, it is valid, though he himself is not liable. Debt adm. on bond, penalty £2000, of the intestate; he in a marriage settlement covenanted that his executor or administrator should within six months after his death, pay in money or goods, out of his personal estate, £700 to A, B, &c. to the use of Sarah Longhurst for life, his intended wife. He died, and left her his widow, and the deft. administered. It was objected that the intestate owed no debt, and so his administrator is not liable, for the intestate had only covenanted, "that his executor shall pay," ,"cited Parrott v. Austin, Cro. El. 232. Held, that the covenant was valid, and secured a real debt by specialty, and the intestate himself was bound in a penalty, though not liable; but without that, said Wilmot J., here is a good debt by spe CH. 29. cialty, and no difference whether he was to pay himself or his representatives to pay. 2. So against executors or administrators, as Thompson v. Wood, Ch. 19, a. 1, s. 3; intestate's bond to his intended wife, that his administrator pay her &c. if she survived, though never any right of action against the intestate, nor was he held to do any act whatever, but leave the £1000 to be paid. A Evarts & al. like case; he bound his heirs so to leave £3000, cited 5 D. & E. 381. But in each of these cases the deceased made a contract, on which a future right of action accrued to the contractee. The deceased bound himself and left a contract to be declared on. Milburn v. Toller's L. of § 3. Grants made to executor &c. though never to his testator. If the executor recover, he has assets &c. As if a lease 165, 166, 437, &c. 462, 463. be made to A for life, remainder to his executors for years, it is assets in the executor's hands and he can recover it, though it could never vest in the testator. So if a lease for years be bequeathed to A for life, and on his death to B, and B die before A, though the term were never in B, it comes to his executor, and is assets in his hands. So the young of cattle, and wool of sheep, produced after the testator's death, belong to his executor, and are assets, yet the property never vested in the testator. So the profits of trade, carried on after his death by his executor and by the testator's direction, are assets, 10 Vesey jr. 110; so where the cause of action accrues after the testator's death, as on a bond to him forfeited after his death, 2 Com. D. Pleader 2 D. 1; 3 Bac. Abr. 93, 94; 1 D. & E. 487; 5 Co. 31; Cro. Car. 225, 685. So the executor may sue on any contract made with him in his representative character, though the right of action never vested in the testator, as Ellenwood v. Fluent &c. &c. See Auter Droit, Ch. 9, a. 19, many cases. 15 Mass. R. 374. 1 Day's Ca. 150, Taber v. Packwood. 2 Phil. Evid. 290. § 4. Administrator de bonis non brings assumpsit; he may lay the promise to have been made to the first administrator as insimul computasset between him and the deft. &c. See Hirst v. Smith, a. 16, s. 27, Ch. 161, a. 8, s. 4. $5. Where executors &c. must sue, and not heirs. As if A devise property to B and C on condition they arrive to twenty-one, and to D for life, in the mean time B and C die; on D's death their heirs cannot sue D's executors for the property, but the executors of B and C must sue them. ART. 18. Several matters. § 1. Where the plt. sues as 15 Johns. R. executor or administrator, and the deft. pleads the general 208.-Bul. N. issue, he admits the plt. is executor &c., and the plt. will have P. 141 to 145, "no occasion to prove his capacity, nor will the deft. be allowed to deny his title to recover; Mansfield v. Marsh, 2 Ld. Raym. cases. 824. СH. 29. Art. 18. § 2. Nor can the deft. on such plea prove there is another executor living besides the plt., this also being matter of a plea in abatement; Watson v. King, 4 Campb. 272; 2 Maule & Sel. 553, Thynne v. Protheroe; Com. D. Tit. Abatement. 3. In debt by an administrator on a judgment recovered by him as administrator, he need not declare as administrator. 16 Mass. R. So whenever he sues in his own right, and if he name himself 71, Talmadge administrator, it is surplusage; but if he claim goods as ad- 2 Phil Evid. ministrator, he must prove his title to them, though he sue in 291, Marshis own right, as he derives it from the intestate, and under Marsh. the general issue the deft. may controvert the plt's. title, as in trover &c. 3 Taunt. 115, in Hunt v. Stevens. v. Chapel. field v. 429, Emerson § 4. Acts of Limitations. A new promise by an executor 16 Mass. R. or administrator within six years takes the case out of the acts, v. Thompson. as well when the administrator de bonis non is sued, as when the original executor or administrator is sued who made the promise. 293. 5. The plt. must prove he is executor or administrator 2 Phil. Evid. when suing as such, if the deft. plead in bar of the action, the plt. is not executor or administrator. liams. § 6. The letters of administration are the best evidence of 2 Phil. Evid. 294, 295.administration granted, and if the administrator be sued and 13 East 234, have notice to produce them and he does not, secondary evi- Davis v. Wildence may be used by the plt. Broderip & Bingham's Reports C. P. 219, 221. The same as to the probate of a will. In both cases there must be proof of identity; that is, that the person sued is the person named executor or administrator in the papers produced. 295, 296. See Virginia.- 7. If the deft. plead plene administravit, he admits some 2 Phil. Evid. debt due to the plt. in assumpsit, but not the amount, but Ch. 223, a. in debt the amount also. And if the issue be, whether the 11, s. 48, in deft. had assets when sued or since, the burden of proof is on the plt. The plt. cannot on this issue prove assets come &c. since the commencement of the action. This matter must be specially replied. This plea is a complete answer to the action when found for the deft., Edwards v. Bethel. As to the form of this plea, see 15 Johns. R. 323. 140.-12 East § 8. Evidence of assets against the executor or administra- Bull. N. P. tor. The inventory rendered by him is, and the plt. may prove 232, Kindsley the goods in it undervalued, and if the inventory do not dis- v. Bassett. tinguish the desperate debts, the whole prima facie will be 5 D. & E. 6. deemed assets; but the deft. does not charge himself with R. 381. assets by admitting the plt's. debt is just, nor by submitting the demand to arbitration, nor by paying interest on it. -17 Johns. 14 Johns. R. 446.-16 Do. 273.-11 Do. 9. If an executor or administrator confess a judgment, or suffer one by default, he is estopped to deny assets as to that judgment only, and must plead it as to another creditor. And 21. |