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 administravit 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 v. 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 travit. 184, M'Knight v. 1 W. Bl. 400. --Off. Ex. 33. An executor or administrator may make his own Toller 463.— estate liable, by knowingly pleading a false plea, as never executor, or a release to himself, or knowingly any false plea, 185. which if true would perpetually bar the action, and it is found against him, judgment de bonis testatoris et si non de bonis propriis. 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 v. Merchant, 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 Art. 18. 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 165, 166, 437, $ 3. Grants made to executor &c. though never to his testator. If the executor recover, he has assets &c. As-if a lease &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. $24. cases. CH. 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. 71, Talmadge So whenever he sues in his own right, and if he name himself v. Chapel.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, Marsfield v. his 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. 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, . Thompson. as well when the administrator de bonis non is sued, as when the original executor or administrator is sued who made the promise. § 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 293. plt. is not executor or administrator. 294, 295. liams. § 6. The letters of administration are the best evidence of 2 Phil. Evid. 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 Ch. 223, a. 11, s. 48, in Virginia.6 D. & E. 10, 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 in debt the amount also. And if the issue be, whether the 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. 11-1 Barn. & Ald. 254. 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 primâ 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. $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. 446.--16 Do. 273.-11 Do. CH. 29. Statutes, March 16, 178. April 8, 1813, &c. &c. April 18, 1819. admission by one of several executors or administrators of a debt due from the testator &c. does not conclude the others. ART. 19. A concise view of the powers and duties of executors and administrators in New York. 1. This subject is very important, not only as it concerns a large part of the Union, but also a very commercial part. And in the laws on this subject there is seen much caution and security in settling the estates of persons deceased, that merits much attention in the other States. While New York was a colony, probate powers were vested in the Prerogative Courts, and after independence, in the Court of Probate. These were continued until 1787. The officers, a judge and surrogate or deputy. As the State increased, it became necessary to make new probate arrangements; and in 1778 the surrogate's office was instituted in the several counties. Since that time executors and administrators have principally settled such estates in the offices of the county surrogates. At first, their powers were limited mainly to proving wills and granting administrations, and from time to time by statutes enlarged, so as to enable them to license executors and administrators to sell and convey real estate whereof the deceased died seized, to pay his debts, as far as his personal estate is deficient: also to enable the surrogate to appoint guardians to minors, and to assign dower; and fully to settle such estates in most cases. 2. Administration how, and to whom granted. In these respects New York has adopted, in substance, as Massachusetts and other States have, the rules and principles of the English statute of Ch. II, before mentioned, with some additions in regard to evidence of certain facts directed to be proved in a specified manner, which facts in Massachusetts are left to be proved as the probate judge's discretion directs. New York directs the surrogate to have proof of the death of the testator or intestate, usually by the oath of the executor or administrator, and by this alone when no other evidence of the death can be had, or when no other evidence is deemed necessary. The administrator solemnly swears, that A. B. of(addition) died without having left any last will or testament, as far as he knows or believes, and that he will well and truly perform the duties of administrator on his estate. This oath, as all the others prescribed, is signed and recorded. Administration is granted to the widow or next of kin in the manner before stated, as soon as it can be done with propriety. The administration granted may be general or special. 3. The administrator's bond with security. After the surrogate has heard the parties interested in the estate to be settled, (where a hearing is requested or deemed proper) as to the person or persons to be administrator or administrators, and desig nated the same, he requires a bond of administration with surety or sureties in the English and Massachusetts form before stated in every material part. The penalty of the bond ought to be from thirty to forty per cent. larger than the amount of the personal estate of every description. To ascertain the amount and situation of the estate, the surrogate may examine witnesses as he may think proper, and he may appoint persons to examine and report the amount on oath, and such circumstances as he may direct. Generally the sureties ought not to be connected with the family; but this rule has its exceptions. The sureties after all their debts paid must be worth the penal sum of the bond when it is taken. And if any doubt arises as to their sufficiency, they must justify before the surrogate vivâ voce usually, but affidavits written may be by him required and filed. This last is a good provision, and ought in all cases to be in writing and recorded. In Massachusetts too little attention has been given to the sufficiency of the sureties. § 4. Administrator's oath and letters of administration. The oath is as above stated. His letter of administration or commission is in the English form, adopted in Massachusetts. It impowers him to do all acts necessary and proper to be done in settling the personal estate of the intestate. 5. Inventory. This is an instrument indented, and includes the goods, chattels, and credits, which were the intestate's at his decease. This inventory is made in the presence, and with the assistance of the two appraisers, appointed and sworn by the surrogate or person appointed to swear them. The appraiser solemnly swears, that he will truly, honestly, and impartially, appraise the personal property of A. B, of &c. deceased, according to the best of his knowledge and ability. When the two appraisers are sworn, the administrator (or administrators) as the case may be, exhibits to them all the personal property of the intestate of every description, as all moveables, shares in corporations, and partnerships, property in the funds, all debts due to the intestate from all persons and bodies politic, public or private, even debts due to him on book accounts, all they appraise at their true value, and credits usually at par. To the appraiser the administrator must in detail, and fairly shew every part of the said personal property come into his possession or to his knowledge. Some have thought that creditors have the best right to be appraisers, next legatees or distributive heirs; but this is evidently wrong, as it is as much for their interest to appraise too high, as it would be for the administrators to appraise too low. If there be any of the intestate's personal property or credits in a peculiar situation, this peculiar situation ought to be noted by the appraisers, as desperate or depreciated debts &c. In fact, CH. 29. |