Сн. 29. Toller's L. of It is waste to pay an usurious bond, or a legacy, after a contingent covenant is broken, but not before; Hob. 167; 12 Mod. 11, 411, 523. As a general rule, any tortious or negligent act in the executor, or administrator, whereby the goods of the deceased are rendered less sufficient to pay debts, is waste. So extravagant expenses at the funeral may be waste. So by assenting to a legacy where not assets sufficient to pay creditors; Off. Ex. 158. So if the executor in any way release, or give up a debt, or right of action, to the testator, the executor is chargeable to the amount given up, paid or not; Off. Ex. 159; Hob. 66; Cro. El. 43. So if he take an obligation to himself in lieu of a simple contract to the testator; 2 Lev. 189; 3 Bac. Abr. 78. So if he only apply to the debtor for a debt, but neglects to sue him, and thereby it is lost; 3 Bac. Abr. 60. So if he negligently lose the debt by the debtor's plea of the statute of limitations; 12 Mod. 573. So if the executor's agent embezzle the assets; 6 Mod. 93. So if he annex a lease for years to the inheritance, whereby it ceases to be assets at law, 1 D. & E. 763. So if he sell the testator's goods at an under value, though the appraised value, Off. Ex. 158; or neglect to sell them at their full price, and afterwards they are taken from him; or delays to dispose of them, by which they are injured, he must personally make compensation; 6 Mod. 181, 182; but not if they be taken from him without any imputation on him, though he recover not their value, but is only liable for what he recovers; 1 Bro. Ch. R. 361; but if perishable and impaired, not liable, if no delay or negligence on his part, beyond what they sell for; but if taken, he must sue the taker, to exempt himself from any greater claim than the damages recovered; 6 Mod. 181; but quære if this taker be worth nothing. But is not answerable if he lend money on security, good at the time, if it fail, or vest it in the funds and they fall; 2 Bro. Ch. R. 231. He has an honest discretion to call in debts, out on interest; nor is a conversion of the assets to his own use. waste, if he pay debts of the testator to the value, with his own money; 1 Saund. 357; Com. D. Admr. J. 2. Nor is it a devastavit, for the executor to compound an action of trover for the testator's goods, and to take a bond for the money, payable at a future day, as this money is assets immediately; 2 Lev. 189; but is chargeable if never paid. If rent be due on a lease, and the tenant become insolvent, and the executor release the rent, and give him a sum of money to quit possession, and in all this evidently acts for the benefit of the estate, he shall be allowed both; 3 P. W. 381. The principle of this last case will be found to apply to a very great number of cases, in which the executor acts honestly and prudently, though there be a loss to, or diminution of, the testator's estate or rights. A devastavit may be proved under a commission of bankruptcy. If a feme executrix marry A, and he commits. waste, both are liable: aliter if she become executrix after married, and he alone is liable; 2 Bro. Ch. R. 323. A devastavit by one executor, does not charge his companion; Dyer 210; 3 Bac. Abr. 31; and if several executors or administrators, each is liable only for what he receives, provided he no way contribute to the devastavit of the other. On a devastavit the executor or administrator answers to the amount of the goods wasted, out of his own estate; Com. D. Admr. L. 3; 3 Bac. Abr. 77. CH. 29. Art. 16. 2 D. 1.-1 H. 18. Assumpsit against an administrator on the intestate's 5 Com. D. promise; an account stated with the administrator as such, 561, Pleader, does not make him personally liable where the account is of Bl. 102. money due from the intestate, Suar v. Atkinson. But if an ex- 1 H. Bl. ecutor state an account of monies due from him as such, he is 108, Rose v. personally liable, Rose v. Bowler; and if a declaration be demurred to for misjoinder of counts, the plt. cannot enter a nolle prosequi as to some, and leave the others remaining. Bowler. East v. Hin D. 563 19. If an executor do not plead a judgment recovered Stra. 732, against the testator, to the action, he shall not afterwards plead ton.-1 Salk. it, to the scire facias; and an executor de son tort shall not plead 315-5 Com. payment of debts, though he may give it in evidence on plene D.R. 587. administravit. And as this executor de son tort cannot repre- -5 Com. D. sent the estate insolvent, being unknown in the probate office, 761, Pleader, and yet is not liable further than he receives assets, if he plead properly, it may be a question if much of the English doctrine of plene administravit does not apply to him here. 3 L. 12. 3 L. 12. 20. The executor or administrator has several other pleas 5 Com. D. in bar. He may plead nul tiel record; so payment; so if Pleader, judgment against A and B, and scire facias against the admin- 1 Salk. 262. istrator of A as survivor, the deft. may shew B survived. So -3 Lev. 272. a release to the testator, intestate, or himself; or a release by one administrator or executor to one executor or administrator. So outlawry, after the judgment has ascertained the damages in assault and battery, to a scire facias thereon. So that the plt. levied debt and damages by scire facias against the testa- Cro. Car. 328. tor, so that he took the debtor in execution, and permitted 762. him to go at large; but not that he died in prison. § 21. As to petitions and pleadings by executors and administrators in relation to selling or conveying lands by license. -5 Com. D. of court, in what order, on what seisin, &c. see chapters 1 Salk. 312.-respecting such conveyances. Two executors are sued, one 2 Ld. Raym. is defaulted, one appears, judgment is against both de bonis 870. testatoris. CH. 29. 6 Mass. R. 390, Storer, adm. v. art. 8. 22. A dies intestate, and B administers on his estate, and dies. C takes administration on A's estate de bonis non, and D takes administration on B's estate. C and D settle an account, and there is found due $500 from B's estate to C, as such administrator of A. The judge of probate decrees D Storer & al. as administrator of B, to pay this sum to C, as such adminisadmrs., see trator. Held, C as such administrator may have debt on this decree against D as administrator, though objected that D ought to be sued in his own right; for though the parties settle the account, it and the decree are still between them as administrators, and if D have not assets of B's estate to pay the $500, he may plead no assets. And if judgment be against an administrator by cognovit actionem, this does not confess assets, and debt on this judgment must be against him as administrator, that he may plead no assets; or if he have assets and pay it, he may charge it in his administration account. A judgment on the administration bond of B in this case is a mere cumulative remedy, and such judgment not satisfied is no bar to such action of debt or other remedy. Satisfaction in either case defeats the other remedy, and may be pleaded accordingly. D in this case should not have charged himself with said $500 till he had recovered it. In this case the $500 was a debt in substance due from B, and D, his administrator, only adjusts it; hence, it is consistent with the rule, that the administrator cannot by his promise bind the estate of the intestate so as to subject it to a judgment and execution; and however dictums may be in the books, it is a clear principle of law here, that whenever an administrator must adjust by an insimul computasset an account or demand against his intestate's estate, the adjusted sum is still a debt due from it, subject to its insolvency, and the administrator is to be sued as such; but then the declaration or plea in the case must state the monies &c. were due from the intestate's estate. It never can be intended, that the administrator of an estate to which a balance on an adjustment is found due, means to claim it in his own right, or the administrator of an estate against which a balance is so found means to make himself personally liable for it, though the estate be insolvent. 11 Mass. R. 233, Clark & al., admrs. v. May. 7 Mass. R. 510, Barber The plt's. administrators neglected to get a stay of execution against their intestate's estate, and his chattels were sold on it, the estate being insolvent. Held, they had no action against the officer who sold them. The plts. should have prevented the issuing of the execution. & ux., admrs. sue. v. Bush. $23. Feme administratrix marries; she and her husband must As in this case on a note the feme was sole administratrix to A's estate, she married Barber, they sued as administrator and administratrix. Deft. prayed oyer of the letters of 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. 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 Weeks v. 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 inay 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 18. 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. 7 D. & E. 182, Hirst v. Smith. 8 Johns. R. 1140, Carter v. Phelps & al. 11 Mass. R. 190, Free man, Judge &c. v. An $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 derson & al. 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 11 Mass. R. r. Fairfield. 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 |