Hicks v. Harris ( 1853 )

Mr. Justice Fishes

delivered the opinion of the court.

The defendant in error brought a suit founded upon a promissory note made by one James Vance, deceased, in the circuit court of Clarke county, against William A. Lang and Thomas J. Hicks, as his administrators.

Lang having died, his death was suggested, and a scire facias ordered to be issued to bring into court Clement Lang, William Lang, and Willis Lang, executors of the last will and testament of William A. Lang, deceased.

They appeared at the October term, 1849, of the court, and demurred to the scire facias. The court overruled their demurrer, and ordered the suit to be revived against them, as executors of William A. Lang, deceased.

Notwithstanding the death of William A. Lang had been suggested at the previous term of the court, the court allowed the plaintiff to file an amended declaration, alleging that Lang and Hicks were then executors of Vance, and in this character seeking to charge them for the note, the foundation of the suit originally brought against them as administrators of Vance.

The parties defendants to the suit moved the court to strike , this declaration from the record, which motion was by the court overruled.

To continue the statement of the case will only bring to view errors equally as apparent as those already stated. The record, perhaps, contains nearly a hundred pages, and presents, from the first order in the cause to the final judgment, an amount of error which but seldom finds its way into judicial proceedings.

It must be borne in mind, that Lang and Hicks were sued as administrators of Vance, and in this character alone sought to be made liable. Lang died, leaving Hicks the surviving administrator. There was no difficulty in the suit’s going on against the surviving administrator. But the plaintiff below thought otherwise, and hence he took the order to revive the suit'against the executors of Lang, the deceased administrator. This, of course, was an effort to make Lang’s estate liable for the debt of Vance. The original suit against him was brought for no such purpose. It was like every other suit founded upon a promissory note of the deceased against the administrator. There is nothing in either the declaration of the plaintiff, or the pleadings of the administrators, which looks to a personal liability. What, then, has rendered Lang personally liable since the commencement of the suit, that his executors must be made parties thereto after his death ? They represent only his estate, and not the estate of Yance. They perhaps could be required to settle his administration with the surviving administrator in the probate court, so as to place the whole estate in his hands. But this is all that they could be required to do. Lang was not personally liable before his death, at least it is not by the record up to that time so pretended. Hence, if his estate is now liable for the debt, his death must have made it so. The record certainly shows no other cause, and no other can be imagined.

Having gone through the record, as made previous to Lang’s death, it only remains to state what the order of the court should have been, upon suggesting his death. The suit as to him was abated. 1 Cushm. 40. If he had been the only administrator, it might have been revived, under the statute of 1846, against the administrator de bonis non on Vance’s estate.

This dispose's of the case as to Lang’s executors.

The judgment as to them is reversed, the demurrer to the scire facias sustained, and the order reviving the suit against them reversed, and held for nought.

The judgment as to Hicks is also reversed, the order overruling the motion to strike from the record the amended declaration is reversed,- the motion is sustained, and cause remanded to be tried upon the original declaration, and such amendments as the court may allow thereto, to reach the merits of the cause, so as to charge Hicks as surviving administrator of Vance.

It is unnecessary for us to notice the other question, as to what will make a party an executor de son tort. The party here is sued as an administrator. In this character, he can be made liable for all goods received at any time after the death of Vance. The grant of letters relates back to the death of the intestate; and. the administrator is bound to inventory all property by him received belonging to the deceased, whether he was at the time administrator in fact or not. If he has disposed of or wasted the property, he is still chargeable for its value, and the probate court can compel him to account for the same.

This disposes of the various questions requiring notice.

The judgment of this court will be entered as hereinbefore directed.