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. CH. 29. Art. 16. Com. D. 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. Abr. 91. 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; see Ch. 9. a. 19, Auter Droit. So as to joining matters. Walker r. Maxwell. Like case 3 Salk. ---3 Inst. Cl. §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. 53.-1 Com. demurred; judgment for them. For though H. had refused, D. 18, 30, 31. yet he might afterwards administer at his pleasure; for when 5 Com. D. some of the executors prove the will and some refuse, and Pl. 2, D. 1. 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, tor named in the will was not joined, yet held good, because Rawlinson he did not prove the will and did not administer. But this was not pleaded in abatement, but in bar; and the executor who r. Shaw, exr. 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 exccutor. 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 v. Emberson. 11. By our statute, if several bé 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 dic, 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, Story's Pl. 2. 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. Toller 446. 2 Saund. 291, notes of Williams. Cro. Car. 420. Story's Pl. 4. § 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 suc, 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, specially; see the manner, Doug. 452. The gene 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. ral 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 CH. 29. Art. 16. 2 Selw., title Executor. 13 Mass. R. 203. 1 Esp. 296. no administrator. But if A receives the deceased's monies after his death, and so was never liable to him, the six years commence from the time administration is taken on the estate of the deceased. And he may recognize a debt so as to take it out of the statute of limitations; but his promise to pay the intestate's debt will not take it out of the statute of 1791, c. 28. Plea, four years had elapsed &c., replication, the deceased's estate is solvent &c., and the plts. within four years, &c. exhibited to the deft. said notes &c., (notes sued) and demanded payment &c., and the deft. promised to pay them &c. in her said capacity; to this replication deft. demurred generally. Held, as above, 13 Mass R. 201, 203, Brown & al. v. Anderson, admr., and 15 Mass. R. 6. 11. As to pleadings by executors and administrators in relation to probate bonds, see Debt on Probate Bonds, Ch. 149. 12. If an executor or administrator be sued as trustee for a debt or legacy, he owes as such to the deft., he must answer pertinent interrogatories, so that the court may have the facts. specially; for he may be trustee or not, according to circumstances. See article Trustee, and article 8, ante. 13. As to the distinction in England, and some of the United States, between declaring in the debet and detinet, or in the detinet, it is not applicable in Massachusetts; for the practice here is to declare on the contract according to its legal operation, without saying technically he owes, and unjustly detains, or he unjustly detains; yet when he is chargeable de bonis propriis, he is held in the first manner, and when in âuter droit, in the second. In Virginia the English principle is adopted. Hence, if A's executor gets judgment for a debt due to A's estate, against B, administrator, and the executor sues on it said administrator, to charge him de bonis propriis, he must allege waste, and declare in the debet and detinet, 3 Hen. & M. 123, Spotswood v. Price. § 14. As it is not recollected that heirs in this state have ever been sued on the covenants or contracts of their ancestors, and it is doubtful at least, if they be liable, as our law gives the executor or administrator power over the whole estate of the deceased, for the payment of his debts, and the fulfilment of his contracts, it seems to be a fair inference that the executor or administrator (and not the heirs) is liable, in every case, on such covenants and contracts, where any action lies, except as in a. 4, s. 13. 15. On the plea, never executor, it is not a question merely whether the person is actually executor, "but whether administration has been properly committed to him or not." And on this plea, he may give in evidence, that the seal of the ordinary was forged, or that administration is repealed, that the testator was non Сн. 29. Art. 16. but not that another is executor, or compos, or that the will was forged. and not executor, this he must plead in abatement; for a recovery against him as executor may be pleaded in bar in an 1 Esp. 298. action against him as administrator, for the same cause. executor de son tort shall never be intended; but if one plead Salk. 297. he is not administrator, but executor of J. S., he must add 1 Esp. 299. absque hoc, that J. S. died intestate. An Farr. & al. v. 8.-1 Leon 16. If execution issue against one for his own debt, who 4 T. R. 621, is executor, the goods of the testator cannot be taken on such an execution, though such executor may sell the testator's al. Cites 2 goods; but if he consent to their being taken on such an exeRol. Abr. pl. cution, it amounts to a sale. So in this case it was said, ᎥᏝ . an 263.-Shep. executor grant all his goods, not only his own, but what he Touch. 94.has as executor pass. So of a release of all actions. When See Sugden 384, exr's. the executor has paid debts of the testator, his goods may be- power to sell. come the executor's as a purchaser; or the court will intend-14 Ves. jr. the property of the testator's goods altered, after a long pos- D. 329.-17 session by the executor. An executor or administrator can- Ves. jr. 132, not devise the goods of the deceased; but he has the proper- 13. & P. 293, ty of them vested in him, before actual possession, and may Quick v. have trover accordingly; but if he use or treat them as his Staines.2 Dickens, own, they will be liable for his own debts. Baron and feme 725. executrix get judgment and she dies; it goes to the administrator de bonis non of her testator: the husband has no right. 353.-1 Com. 167, 97. Lane. 17. Pleas in relation to devastavit or waste. The plt. re- 1 Saund. 46, covered judgment against Lane, as executor of A, and then Wheatly v. brought his action against him in his natural capacity, alleging the recovery, and that the deft. wasted the goods of the testator, to the value of the debt recovered, by which the action. accrued to the plt. &c.; and on argument held good, and judgment for the plt. Where the plt. cannot reply de son tort, 126. deft. being administrator &c. 8 Johns. R. 3 Salk. 125, 126.Cro. Car. 603. Berwick v. In this case it was held to be waste in an executor, to let interest run on, if he have assets to pay. And where the wife is liable for waste while sole, her husband becomes liable. So where A got judgment against J. S. as executor, and Salk. 314, died, and A's executor brought debt on the judgment against Andrews. the said J. S., held that A's executor may suggest waste in A's lifetime. So it lies for the executor, to whom the tort is done; but not against the executor of him who did the wrong In this last case the rule actio personalis &c. applies. Husband, and wife, executrix, commit waste-he is not liable after her death, except there is a judgment against them. To the suggestion of waste in a declaration against an executor or administrator, the proper answer or plea is, that he has not wasted the testator's goods &c. 3 T. R. 685.-Cro. Car. 519. -3 Salk. 125, 160. |