Conrad v. . Dalton , 14 N.C. 251 ( 1831 )

after stating the substance of the pleadings, as above set forth, proceeded: This is an attempt by the creditor to reach the assets of the debtor (Johnathan Dalton) in the hands of the executor of the administrator, which certainly cannot be done at law. For neither the administrator of the executor nor the executor of the administrator represents the first testator or intestate. The unadministered assets belong to the administrator de bonis non of the first dead man, and may be recovered by him, and when so recovered are assets in his hands. And if he neglects to recover them, it is a devastavit, and he is responsible for their value, viz.: for what he might have recovered. Where the goods have actually been wasted by the first executor or administrator, I am at a loss to say what is to be done. For a devastavit is in tort, which dies with the person. Perhaps our acts of Assembly, reviving all causes of action where property is the subject of controversy, that is, all which are not merely vindictive, will enable the administrator de bonis non to sustain an action, even where there has been an actual devastavit. Where the goods remain in kind, and are unadministered, there can be no doubt that the administrator de bonis non may recover them. But in no case which I can conceive is the administrator of the executor, or the executor of the administrator, liable at law to the actions of creditors of the first testator or intestate. Where the executor or administrator becomes fixed with assets, it is then his own debt, and his executor or administrator is liable. Property or debts, in compensation for a devastavit, may in equity afford ground of relief to creditors, legatees and distributees upon aproper case. But the executor of the executor, where there is only one executor of the first testator, or of the surviving executor where there are more, is liable at law. For, in fact, he is the executor of the first testator.

When I say that, independently of our acts of Assembly keeping alive actions for torts, where property is the subject-matter of them, I am at a loss to say how in the case of a waste of property by the executor or first administrator, the administrator de bonis non could (253) obtain satisfaction; I mean where the property has been destroyed. If the executor or administrator has converted the goods into money, and failed to apply it to the uses of the estate, it is so much money in his hands, for which the administrator de bonis non may support an action, I suppose, for such money received to his use. But this is rather straining the action for money had and received. For it cannot, otherwise than by a fiction, be said to have been received to the use of the administrator de bonis non. To sustain the action, we must personify the estate, and as the administratorde bonis non represents the estate, give the action to him. There is no difficulty when the property remains in kind. And, I believe, by a justifiable extension of our acts before mentioned, they may embrace cases of actual waste.

PER CURIAM. Judgment affirmed.

Cited: Lansdell v. Winstead, 76 N.C. 369; Walton v. Pearson, 85 N.C. 51;Morris v. Syme, 88 N.C. 455.