CHAPTER XII.

OF THE ACTION AGAINST AN EXECUTOR OR ADMINISTRATOR OR HIS REPRESENTATIVES OR SURETIES FOR A DEVASTAVIT.

1. Against a personal representative of a personal representative; whether it is indispensable there should be judgment against first executor or administrator.

At common law an executrix de son tort of a rightful executor can be sued for the debt of the original testator. Having chosen to take upon herself the office of executrix, she incurs thereby all the liabilities to which she would be subject if she were rightful executrix. She is taken to have had those assets of the first decedent, if any, which the rightful executor left unadministered, transmitted to her; if there be none such transmitted, and the rightful executor committed no devastavit, this can be relied on in answer to the action. Meyrick &c. v. Anderson, 11 Adol. & El. N. S. 725; 68 Eng. Com. Law Rep. 725.

The statutes of 30 Car. 2, c. 7, and 4 & 5 W. & M. ch. 24, § 12, were for a different object. They were passed in respect of a devastavit committed by an executor de son tort, or by a rightful executor or administrator, which, being a tort, it was thought, on the principle actio personalis moritur cum persona, that the representative of such executor or administrator could not be made liable. From those statutes was taken the Virginia act in 1 R. C. 1819, p. 390, § 66, which in the Code, p. 544, ch. 130, $21, is substantially preserved as follows:

A suit may be maintained against the personal representative of an executor in his own wrong, or the personal representative of a rightful executor or administrator, by whom any waste may have been committed.

Under the statute, if a judgment be had against an executor or administrator, who afterwards dies, an action may be brought against his executor or administrator upon the judgment, suggesting a devastavit by the first executor or administrator; and whatever act of the first executor or administrator would have made him personally liable and chargeable with the payment of the demand de bonis propriis, will now, by virtue of the statute, make his personal estate liable in the

hands of his executor or administrator. 219, d.

1 Wms. Saund.

Serjeant Williams says, there are these distinctions 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 first executor. 1. In the former case, the action is in the debet and detinet, and the judgment is de bonis propriis; but in the other the action is in the detinet only, and the judgment is de bonis testatoris. 2. The former action can only be brought upon a judgment previously 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 lifetime, was in any way guilty of any act which amounts in law to a devastavit, such as exhausting the assets by payment of debts of an inferior degree before those of a superior, and the like. 1 Wms. Saund. 219, e.

Whether a judgment against the first executor or administrator, in his lifetime, is indispensable to maintain an action for a devastavit committed by him, when the action is brought against his executor or administrator, was a subject much discussed in Virginia, in Wernick v. M'Murdo, 5 Rand. 51. In an original suit against an executor or administrator, it is clear that a devastavit cannot be put in issue, nor anything, but whether the debt be due, and whether assets sufficient to satisfy it, in a due course of administration, have come to the hands of the executor or administrator. In a suit against the executor or administrator of the first executor or administrator, the gist of the action has been supposed to be different. The action, it is said, is not for the recovery of the debt eo nomine, as the debt of the testator, but to obtain compensation for the injury done by the executor; and the debt is matter of inducement, and the measure of the recovery, provided the devastavit be equal to the amount of the debt. This difference between the two cases was stated by Judge Green in Wernick v. M'Murdo, pages 80, 81. His opinion. is, that the statute gives a right to every creditor of the first testator or intestate, whether he had obtained a judgment against the first executor or administrator, in his lifetime or not, to sue the representative of such executor or administrator, and to allege in his declaration, the existence of the debt, that assets sufficient to pay it had come to the hands of such executor or administrator, and that he had wasted or converted them; and in support of this opinion he relies on that of serjeant Williams above quoted. Judge Coalter was of opinion,

that the statute was never designed to alter the common law rule which required, that whenever a suit was brought to establish a debt against a testator or intestate, it should be against him who was privy to and represented as well the person as the estate of such testator or intestate; and he expressed himself in favour of restraining the operation of the statute to those cases in which a debt had been established to be due from a testator or intestate in a suit against his executor or administrator. S. C. p. 104 to 108. The other judges gave no opinion upon this question, as a decision of it was not called for in the case before them.

2. Against executor or administrator himself for a devastavit; or against the sureties in his official bond.

When a person, who claims to be a creditor of a decedent, seeks in an action at law against his personal representative to charge him personally with the debt, it is not enough for him to produce a bond, note or other document executed by the decedent; but he must shew that he has instituted a suit against such representative, and in that suit establish the debt to be due from the decedent. Braxton v. Winslow &c. 1 Wash. 31; 4 Call 308; 11 How. 152.

When it is contemplated to bring such action to charge the representative personally, whether it be an action of debt suggesting a devastavit or an action on his bond, the usual course is first to sue out a fieri facias upon the judgment obtained in the previous suit against such representative and have a return by the sheriff of nulla bona. Then, in the action, the judgment, execution and return are stated in the declaration and given in evidence at the trial. Tucker, J. in Gordon's adm'rs v. Justices of Frederick, 1 Munf. 13; Mead &c. v. Brooking, 3 Munf. 548.

In Virginia, formerly, no action could be maintained against the sureties in the bond of an executor or administrator until there had been first a suit against the executor or administrator as such to establish the amount of the debt due from the decedent; and secondly, an action against the executor or administrator personally, suggesting a devastavit, and a verdict and judgment therein for the plaintiff. Taylor &c. v. Stewart's ex'ors, 5 Call 520; Turner &c. v. Chinn's ex'ors &c. 1 H. & M. 53; Gordon's adm'rs v. Justices of Frederick, 1 Munf. 1; Catlett v. Carter's ex'ors, 2 Munf. 24; Hairston v. Hughes &c. 3 Munf. 568.

On the 7th of February 1814, there was passed the act in 1 R. C. 1819, p. 390, $ 63, the effect of which was to enable

a creditor to maintain an action on the bond of the executor or administrator against his sureties upon a state of facts which, before the statute, would only have supported an action against him. Before this statute, as Judge Stanard remarked in Bush v. Beale, 1 Grat. 232, the judgment, execution and return set forth in the action suggesting a devastavit were prima facie evidence of assets and the waste of them; and sufficed, unless invalidated by the defendant's plea and proofs, to warrant a verdict and judgment for the plaintiff in such action. The object of the statute was to dispense with this intermediate suit; and it dispenses with it by giving the action on the bond, when the plaintiff is in the predicament, according to the pre-existing law, to maintain an action suggesting a devastavit, that is when he has judgment, and on the execution issued on that judgment there has been a return of nulla bona.

Notwithstanding the act of 1814, in respect to judgments against executors in their representative character, there might have been some question as to the effect of a decree against a personal representative. Hairston v. Hughes &c. 3 Munf. 568. The existing provisious in the Code of 1849, p. 544, ch. 130, § 23, 24, are adapted to a decree as well as a judgment, and are also adapted to case, like Turner &c. v. Chinn's ex'ors, 1 H. & M. 82, in which the return on the execution is not exactly such as was contemplated by the act of 1814. Those provisions are as follows:

§ 23. Where an execution on a judgment or decree against a personal representative is returned without being satisfied, there may be forthwith brought and prosecuted an action against the obligors in any bond given by such personal representative for the faithful discharge of his duties.

§ 24. No personal representative, or any surety of his, shall be chargeable beyond the assets of the decedent, by reason of any omission or mistake in pleading, or false pleading of such representative. And in the action allowed by the preceding section the defendants may plead any pleas, and offer any evidence, which would be admissible in an action against a personal representative suggesting a devastavit.

3. Whether a legatee can maintain an action on the executor's bond.

An executor giving bond for the faithful discharge of the duties of his trust, and one of those duties being to pay and deliver legacies as far as the personal estate will extend, it is adjudged in Kentucky that an executor who unreasonably withholds from a legatee a specific legacy is liable to an action

of covenant on his bond for a breach of its condition. Com. v. Heaveren &c. 2 B. Monroe 126.

The courts of Virginia have not yet gone so far, even with the aid of the statute of 1814 or the amendment thereof in 1849. In the cases that have arisen in this state-which have been founded on a claim not to a specific legacy but to money -it has been thought that an action on the bond of a personal representative can be maintained only by one entitled to bring debt for a devastavit; and that a legatee cannot bring such action until he has first established his claim by the decree of a court of equity. Tucker, P. in Burnett &c. v. Harwell &c. 3 Leigh 94.

The statute substitutes, as the pre-requisite of the suit on the bond, the existence of the facts necessary to maintain an action suggesting the devastavit, in place of such action and judgment therein for the relator. Stanard, J. in Bush v. Beale, 1 Grat. 233.

In this case, the declaration in substance set out a decree in favour of the relator against the executor, the judicial ascertainment of assets in his hands sufficient to satisfy the decree, the emanation of a fi. fa. thereon, and the return thereof nulla bona. It having set out the matters, the existence of which the statute declares, shall entitle the relator to the action, a demurrer to the declaration was overruled. Afterwards, at the trial, there was a verdict and judgment for the plaintiff notwithstanding an irregularity in the form of the execution, and notwithstanding a plea that the execution issued irregularly after a year and a day from the date of the decree; the issue on the plea being deemed immaterial. Beale's adm'r v. Botetourt Justices &c. 10 Grat. 278.

4. Action on the bond of an executor or administrator lies for the party who obtained the judgment or decree or for the personal representative of that party, or (if he was a representative) of his decedent.

When the creditor has obtained a judgment, or the legatee obtained the decree, if there be an assignment of the judgment or decree, no action can be maintained on the bond at the relation of such assignee; for the previous judgment or decree does not ascertain that he is a party injured. The action must be at the relation of that creditor or that legatee who has obtained the judgment or decree. And an endorsement may be made upon the writ or declaration shewing that it is for the benefit of that person who has the assignment. VOL. II.-9