V. Justices of MARCH, fury, that the executor had wasted the goods of the testa1810 tor, then the Sheriff is to warn the executor to appear, &c.(a) Gordon's Ad- And if the Sheriff omits to give notice to the defendant of ministrators the time the writ is to be executed, the inquisition may be Frederick. set aside for that cause. (b) And this practice, we are told, is still frequently adopted in England; but in this country (a)See Lilly's Ent. 664--666. no case of the kind has occurred within my own expe(b) 2 Lord Raym. 1382. rience. But the most usual mode of proceeding, even in Steed v. Lay ner. 623. S. C. (c) 2 Lord Raym. 974. (d) 1 Lord Raym 590. 3 316. ack. Com, (e) 1 Rev. Gode, p. 165. 1 Stra. England, is by action of debt upon the judgment, suggesting a devastavit, which, we are told, was substituted in lieu of the proceeding by scire fieri inquiry.(c) The foundation of this action is a judgment obtained against the executor. A judgment against an executor or administrator, whether by default, (that is, by neglect after an appearance, for in England no judgment can be in a personal action without appearance,)(d) or upon demurrer, or upon a verdict on any plea, pleaded by the executor, except plene administravit, or admitting assets to such a sum, et rien ultra, is, in England, (and perhaps in this country before the act of 1806, c. 21.) conclusive upon him that he has assets to satisfy such judgment. But our act of 1792, c. 92. s. 33.(e) declares, that no security for any executor or administrator shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or false pleading, of such executor or administrator. The effect of this provision, as it relates to the securities, I shall consider hereafter. Indeed, if the executor or administrator plead either a general or special plene administravit, it is now held, that he is only liable to the 2 Wash. amount of the assets proved to be in his hands; (f) though the case was formerly taken to be, that if any assets, however small, were proved to be unadministered, the plaintiff was entitled to recover his whole demand from the executor: so that now a judgment against an executor on a verdict upon plene administravit, is only an admission of assets to the extent of assets which may be proved to be in his hands. If, therefore, upon a fieri facias de bonis testa 302. Booth v. Armstrong. 1810. ministrators toris, on a judgment obtained against an executor by either of the ways above mentioned, either no goods can be found, which were the testator's, or not sufficient to satisfy the de- Gordon's Admand; or, (which is the same thing,) if the executor will not expose them to the execution, that is evidence of a de- Frederick. vastavit. And the English authorities in general seem to consider it as conclusive; but Serjeant Williams, in his V. Justices of 336. note on the case of Hancock v. Proud,(a) says, that to a (a) 1 Sarně. scire facias on a judgment, or action of debt suggesting a devastavit, the defendant cannot plead plene administravit, but only controvert the devastavit; of which fact the judg ment and Sheriff's return of nulla bona testatoris, are almost conclusive evidence; and the judgment will be against the defendant de bonis propriis. The mode of proceeding is immaterial, it is said, because the executor is entitled to the same defence in an action of debt upon the judgment suggesting a devastavit, as in the proceeding by scire fieri inquiry. The usual course in an action of debt is, first, to sue out a fieri facias upon the judgment obtained against the executor, and, upon the Sheriff's return of nulla bona, to bring the action, and state in the declaration, the judgment, the writ, and return; and, on the trial, to give in evidence the judgment, the fieri facias, and the return, to prove the case. There are certain rules equally applicable to the proceeding by scire fieri inquiry, and to the action of debt on a devastavit; 1st. The return of a devastavit by the Sheriff, on the execution issued upon the first judgment against the executor, is not conclusive, and therefore the executor may traverse the devastavit, whether it be found by the inquisition, or returned by the Sheriff. The form of the traverse is indeed different. the scire fieri inquiry, the executor precisely and expressly denies the devastavit found by the inquisition, and takes issue upon it.(b) But, in an action of debt, the whole may (b) See 1 be given in evidence on nil debet,(c) or on not guilty.(d) In Saund. 306. Lilly's Ent. 666, 667. 2dly. The executor cannot, in either case, plead plene administravit, or any other plea of the same nature, which (c) 1 Saund. (d) 1 Salk. 314. 2 Lord Raym. 1503. 1 Term Rep. 462. 219. 2 Lord Raym. 1502. MARCH, 1810. ministrators V. Justices of puts his defence upon want of assets, unless the first judg ment were of assets in futuro, or the declaration in the seGordon's Ad- cond action should suggest a devastavit of assets which had accrued after the judgment declared upon; in both Frederick. which cases, such pleas have been held admissible. (a) The (a) See 6 T. reason is, that such plea (except in the cases just mentioned) R.1. Mara v. would be contrary to what is admitted by the judgment in Quin; and 2 Wash. 187. the first action. And, if the truth were, that the executor Ruffin v. Pendeton. Bull. had no assets, he should have set it up as a defence to the N. P. 169. Taylor v. original action, which having neglected to do, he shall not be permitted to say so afterwards. For it is a general rule, that if a party do not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards plead' it, either in another action founded on it, or in a scire facias. And, if he did plead plene administravit to the original action, and the judgment was had upon a verdict, finding that he had assets sufficient to satisfy the debt, he is of course equally concluded from saying that he had no assets. But, if the verdict in the original action do not find, upon the plea of plene administravit, that there are assets sufficient to pay the debt, or if it do not find the value of the goods in the hands of the defendant, if not sufficient to satisfy the plaintiff's demand, as such a verdict would be uncertain and insufficient upon the issue joined, the judgment founded upon it may be re(b) 2 Wash. versed for error.(b) And for the same reason that the exv. Armstrong, ecutor cannot plead the want of assets, (except in the cases above mentioned,) he cannot give in evidence the want of assets on the trial of the devastavit, either in the scire fieri inquiry, or in the action on the devastavit; nor even upon a writ of inquiry after judgment by default in the original action, according to the practice in England. See 1 Saund. 219. n. 8. Wheatly v. Lane, in which the editor, Serjeant Williams, has given a most copious and satisfactory view of this subject. 302. Booth Such appears to be the modern course of proceeding against an executor in England, in order to charge him personally for a devastavit, and such the course by which MARCH, ministrator Justices of he may defend himself against the charge; and, in my 1810. opinion, they will justify what is reported to have been Gordon's Adsaid by the Court, 1 Wash. 33. "an executor shall not be presumed guilty of a devastavit till it is found against him Frederick. by a verdict." The action of debt upon the first judgment, is the clearest, simplest, and most unexceptionable course of proceeding, because the declaration, in such an action, must set forth the whole of the plaintiff's case, and give the executor notice of the particular charge against him. Whereas, in an action of debt upon the executor's bond, the ordinary practice here seems to be, to declare upon the bond, as upon a bond for the payment of money, without setting forth the condition, or alleging any particular breach thereof; leaving it to the defendant whether the executor himself, or his representatives if he be dead, or the security if joined with him in the action, or sued alone, (as was done in the case of Taylor v. Street,) to guess at the breaches which may be afterwards assigned in the replication as in the case now before us. room for surprise in such a course of proceeding, which can hardly be practised in an action of debt brought upon the judgment, and suggesting a devastavit; a circumstance of itself sufficient in my eyes to give the preference to the latter action. But our act of 1792, c. 92. s. 33.(a) affords a stronger reason (one indeed that is conclusive to my mind) why this course of proceeding which I recommend must be adopted in all cases arising upon any executor's or administrator's bond executed since the commencement of that act, which expressly declares, "that no security for any executor or administrator shall be chargeable beyond the assets of the testator or intestate, by reason of any omission or mistake in pleading, or false pleading, of such executor or administrator." Put the case, that an executor, who has never received more than $100 of his testator's estate, shall, by his own inattention or mismanagement, or that of his counsel or attorneys, have made himself personally There is too much (a), 1 Rev. Code, p. 165. ministrators V. Justices of MARCH, liable to satisfy judgments against him for demands against 1810. his testator for $10,000. Can the securities be charged for Gordon's Ad- more than the $100, if that were, in truth, the whole of the assets? Certainly not. Is it not then incumbent on the creFrederick. ditor, when he brings an action against the securities, to shew that assets sufficient to discharge his debt have come to the hands of the executor, and that he has wasted them? Certainly it is; nor will it be sufficient to shew that the executor either by his neglect, or false pleading, has made himself liable for the debt personally, without shewing that he actually had assets sufficient to pay the debt, or a part thereof. It may be asked, perhaps, how is a creditor to ascertain the amount of the assets which have come to the hands of an executor? The law, I conceive, has sufficiently pointed out the method; it requires the executor to give bond, with condition, "to make a true and perfect inventory of all the goods, chattels, and credits of the deceased, which have, or shall come to the hands, possession, or knowledge of the executor, or into the hands and possession of any other person, for him, and the same so made to exhibit into the Court granting the probate, (or letters of administration, as the case may be,) at such time as he shall be thereunto required by the Court.(a) His oath also binds him to make a true and perfect inventory, and also a just account when thereto required.(b) If an executor should unrea sonably delay to make and return an inventory, any creditor or other person interested in the estate might, by application to the Court, procure him to be summoned to return an inventory. By this course, which is conformable to (e) See Nel the practice in England,(c) the amount of the assets may be Testamenta ascertained, and by the same course the account of his exeria, p. 355. (a) 1 Rev. Code, p. 163. (b) Ibid. p. 162. son's Lex Term Rep. Mara v. Sir T. Raym. cutorship, which is also to be exhibited when thereto reRep. 470. 6 quired by the Court, may likewise be obtained. And surely this course is infinitely more likely to attain the great ends of justice, than to trust to a common Jury to adjust and settle a complicated account of an executor's or admi Quin. |