Sibley v. Williams , 3 G. & J. 52 ( 1830 )

Archer, J.,

delivered the opinion of the court.

This” is an action of debt, against the executor of an executor, on a single bill, suggesting a devastavit,, by the first executor of the goods of his testator, and the question submitted by the demurrer is, whether the action is maintainable. At common law, no executor was answerable for a devastavit by his principal. 1 Sound. 219, no. C. 2. Bac. Abrid. 445, and the reason assigned in the latter authority, was because such executor could not be supposed to know, how his testator had disposed of the goods, and therefore this was esteemed actio personalis, qua moritur cum persona. But it being found inconvenient, that when an executor made an alteration of the goods of the testator and died, that creditors to the first testator should be disappointed in the collection of their debts, a statute was passed in the 30th year, Chas. 2d. ch. 7, giving to creditors a right to recover their debts of the executors and administrators of executors in their own wrong. In 4 and 5, Williams and Mary, ch. 24, it is recited that it had been doubted whether 30 Chas. 2, ch. 7, extended to any executor or any administrator of an executor or administrator of right, who for wánt of privity in law was not before answerable, and is “ enacted and declared that all and every the executor and executors, administrator and administrators of such executor or administrator of right, who shall waste or convert to his own use, goods, chattels or estate, of his testator or intestate, shall from thenceforth be liable and chargeable in the same manner as his or their testator or intestate should or might have been.” Williams in his notes on Saunders, 1 vol. 219. i. e. in pointing out the distinction between an action against the executor himself upon a judgment suggesting a devastavit by him, and one against the executor of such executor, suggesting a devastavit by the former executor, says, the former action can only be brought upon a judgment pre- • viously obtained against the executor, de bonis testatoris, or where he is made a party to a judgment against a testator by scire facias; but in the other, an action may be brought in every case where the executor in his life-time, was in any way guilty of any act which amounts in law to a devastavit, and this position is clearly sanctioned, by the very words of the statute of William and Mary, which makes such executor “ chargeable in the same manner as his testator should or might have been.”

There can be little doubt, but that these statutes were in force in this State. They concerned the administration of justice, and it has always been understood that the judges under the old government laid it down as a general rule, that all statutes for the administration of justice, whether made before or after the charter, so far as they were applicable, should be adopted. Kilty’s Rep. on Stat. Intro. 6,

The statute 30 Chas. 2, ch. 7, is reported by Kilty to have been found applicable, and to have been used and practiced under, but the same author has considered that the 4 and 5 William and Mary, ch. 24, was not in force. As it regards many of the provisions of this statute, the remark is undoubtedly true; but so far as regards that part of this statute which relates to the subject under consideration, we apprehend the compiler was in error, for had it not been for this law, the statute SO Chas. 2, ch.7, would have expired by its own limitation, and it is in the nature of a declaratory law, expounding the statute of 30 Chas. 2. If it be true that 30 Chas. 2, ch. 7, was in force up to the period of the revolution, it could only have boon so in virtue of the statute, 4 and 5 William and Mary, ch. 34, which made the same perpetual. But it is supposed that these statutes are superseded, and rendered entirely unnecessary by our testamentary laws. But a careful examination of them brought us to a different conclusion. Unless the plaintiff can obtain his remedy in the manner he has sought it, insuperable difficulties will he opposed to his recovery by any other course. We speak now on the supposition, that there has been an actual, and not a mere technical devastavit of the goods. If the action thus conceived cannot be supported, the present creditor could only look to the administrator de bonis non, on the estate of the first testator, and we think there could he no recovery against him, unless such administrator had other goods than those wasted. The act of 1798, ch. 101, sub-ch. 14, sec. 2, makes it the duty of administrators de bonis non, to administer all things in that act described as assets, not converted into money, and not distributed or delivered, or retained under the court’s direction. In the passage of this law, it is clear that the legislature did not mean to make any thing the subject of administration in the hands of the administrator de bonis non, which did not exist in specie. If property had been converted into money, such money was not the subject of administration, but the estate of the first executor or administrator was liable therefor, as for a devastavit, although such executor or administrator had failed to deliver over assets in his hands, yet the legislature never contemplated, if such assets had not at the time of the granting of the letters de bonis non any existence, hut were wasted and destroyed, that they should be the subject of administration. They could not in the nature of things be assets; damages for such waste might have been made assets, and power might have been given to such administration to recover such damages; but such is not the fact. The acts of assembly are silent upon the subject. The act of assembly of 18&0, ch. 174, sec. 3, extends only to bonds, notes, accounts and evidences of debt, which the deceased executor or administrator, may have taken, received or had as executor or administrator, and to money in his hands, and gives power to the administrator de bonis non, to recover the same by an action on the bond. Had this act given a similar remedy in cases of all personal property which had ever come to the hands of the first executor, there would have been no ground to sustain this action, for the remedy in such a state of the law, would have to be sought through the administer de bonis non, and through him only; but where property, which has not been converted into money, and for which no evidence of debt has been taken, but has been wasted and destroyed, to creditors situated like the present plaintiff, there is no remedy, but by a resort to the estate of the delinquent executor or administrator. If indeed that be deficient, or such estate is apparently insolvent, such creditor may ultimately have recourse to the testamentary or administration bond. The judgment is reversed and judgment rendered for the plaintiff on the demurrer.

JUDGMENT REVERSED.