Remnant v. Bremridge (1818), 8 Taunt. 191, 2 Moore, 94, 19 R. R. 495; Wollaston v. Hakewill (1841), 3 Man. & Gr. 297, 3 Scott N. R. 593, 10 L. J. C. P. 303. But the executor is liable de bonis propriis to the extent of the value of the land. Rubery v. Stevens, supra. Where an executor is chargeable as on an admission of assets, his personal representative is estopped in an action brought under 30 Car. II. Stat. 1, c. 7, and 4 & 5 W. & M. c. 24 (which made liable the executor or administrator of an executor or administrator who had wasted the assets of the original testator or intestate, from showing that his testator or intestate had no assets of the orignal testator or intestate. Jewsbury v. Mummery (Ex. Ch. 1872), L. R., 8 C. P. 56, 42 L. J. C. P. 22, 27 L. T. 618, 21 W. R. 270. As execution against an executor or administrator who has committed a devastavit, is de bonis testatoris, et si non de bonis propriis, an executor sued under these statutes cannot meet the action by showing that he has no assets of the original testator in his hands. Coward v. Gregory (1866), L. R., 2 C. P. 153, 36 L. J. C. P. 1, 15 L. T. 279, 15 W. R. 170. AMERICAN NOTES. Both principal cases are cited by Redfield on Wills, but with no analogous American cases. The first is cited by Morse on Awards, p. 21, who examines the English decisions, and says: "Questions of this nature seem to have been of rare occurrence in the United States, perhaps because statutory provisions have generally interfered to protect the executor or administrator." In McKeen v. Oliphant, 3 Harrison (New Jersey Law), 442, the executor was held not personally bound by a submission on behalf of himself and his heirs, the award to be paid "out of the estate of said deceased." The Court said, "the strict technical rule" that submission was an admission of assets could not prevail over the clear intention of the parties expressed in the submission; and Mr. Morse adds, that "unquestionably the old rule must be regarded as not only strict and technical, but as too antiquated to be now regarded as law by any tribunal." In Tallman v. Tallman, 5 Cushing (Mass.), 325, the doctrine of the Rule was obiter recognized, without citing any authorities. The common-law rule was recognized in Kentucky in Overty's Ex'r v. Overly's Devisees, 1 Metcalfe, 117; Yarborough v. Leggett, 14 Texas, 677 (citing Barry v. Rush), but held to be not in force in submissions under statute; and so in Pennsylvania, Konigmacher v. Kimmet, 1 Penrose & Watts, 207; 21 Am. Dec. 374, where the Court said: "I have said the old cases are unreasonable and are not law now." "The old cases at law, as to the liability of executors, guardians, etc., are of such a nature as to excite astonishment. They would seem, by consent, to have been set up like a cock at Shrovetide, to be thrown at by all who delight in such sport; " and as to the rule in question, "It has not been the law for two centuries." In Wood v. Tunnicliff, 74 New York, 46, the Court said, citing Barry v. Rush, that "The authorities tend to establish that executors are personally bound by a covenant to abide by and perform an award contained in a sub No. 4. In re Rownson: Field v. White, 29 Ch. D. 358. — Rule. mission entered into by them, although in form they covenanted as execu tors, unless from the other parts of the submission it appears that the intention was to bind themselves only to pay out of the assets in due course of administration." This doctrine is approved in Sumner v. Williams, 8 Massachusetts, 162, 5 Am. Dec. 83 (a case of a deed), citing Barry v. Rush, and remarking: "In short, the general principle undoubtedly is, I think, that an administrator has no power of charging the effects in his hands to be administered, by any contract originating with himself." The existence of the common-law rule is also recognized in Kendali v. Bates, 35 Maine, 357; Alling v. Munson, 2 Connecticut, 691; Childs v. Updyke, 9 Ohio State, 333; Barker v. Belknap's Estate, 39 Vermont, 168. If the award is less than would have been recoverable by suit, the executor is liable for the deficiency. Bean v. Farnam, 6 Pickering (Mass.), 269; Wheatley v. Martin's Adm'r, 6 Leigh (Penn.), 62; Nelson's Adm'r v. Cornwell, 11 Grattan (Virginia), 724. Mr. Morse however queries whether this doctrine would apply in cases of submission by statutory authority. No 4. IN RE ROWNSON: FIELD v. WHITE (C. A. 1885.) RULE. AN executor or administrator, although not bound to take advantage of a Statute of Limitations which only bars the remedy, commits a devastavit if he pays a claim arising under an agreement which could not be enforced by reason of the Statute of Frauds. And he cannot retain, as for a debt due to himself, under a claim which by reason of the Statute of Frauds, he could not have enforced. In re Rownson: Field v. White. 29 Ch. D 358-365 (s. c. 54 L. J. Ch. 950; 52 L. T. 825; 33 W. R. 604). Claim which cannot be enforced. - Statute of Frauds. Devastavit. [358] An executor or administrator would commit a devastavit who paid a debt to a creditor who is prevented from enforcing it by the Statute of Frauds. And for the same reason an executor or administrator cannot retain such debt if due to himself. A father in consideration of the marriage of his daughter made a verbal promise to pay his daughter and her husband £500. He died intestate without performing his promise, and the daughter took out administration to his estate: Held (affirming the decision of KAY, J.), that the administratrix could not retain the debt out of the assets. No. 4. In re Rownson: Field v. White, 29 Ch. D. 358, 359. The question in this case arose in the administration of the estate of Joseph Rownson. On the 23rd of September, 1847, Thomas White married Marion, the daughter of Joseph Rownson, and Thomas White and his wife. alleged that upon the treaty for the marriage Rownson verbally promised and agreed in consideration of the intended marriage to pay them the sum of £500. They also stated that after the marriage Rownson admitted the promise to White, and gave him two bills of exchange drawn by the firm of Rownson & Drew upon the Maesteg Iron Company, which was being wound up in bankruptcy, but that nothing had been received on the bills. Rownson died in August, 1870, intestate, and letters of administration of his estate were granted to Marion White. She now claimed to retain the sum of £500, together with £472 for interest, out of Rownson's assets. When the cause came on for further consideration Mr. Justice KAY held that the promise to pay £500 was within the 4th section of the Statute of Frauds (29 Car. II. c. 3), and could not be enforced, and that the delivery of the bills of exchange did not amount to a part performance, and refused the claim for a right of retainer. * From this decision the defendants, Mr. and Mrs. [* 359] White, appealed. W. Pearson, Q. C., and Oswald, for the appellants : — The fact of the promise by the intestate is proved by the evidence of Mr. White, and is sufficiently corroborated by the evidence of his wife. In re Finch, 23 Ch. D. 267. Mr. Justice KAY did not decide against us on this point, but he held that the promise was within the 4th section of the Statute of Frauds, and could not be enforced. We contend that this was an erroneous view of the law. The statute does not make the contract void, but only bars the remedy. Britain v. Rossiter, 11 Q. B. D. 123, 48 L. J. Q. B. 362. It is similar to a debt which is barred by the Statute of Limitations. And it has been well established that an executor or administrator may pay a debt which is barred by the Statute of Limitations if due to a stranger, or may retain it if due to himself. Williams on Executors, 8th ed., pp. 1053, 1810; Norton v. Frecker, 1 Atk. 524; Sharman v. Rudd, 4. Jur. N. S. 527, 27 L. J. Ch. 844; Stahlschmidt v. Lett, 1 Sm. & Giff. 415; Hill v. Walker, 4 K. & J. 166; Coombs v. Coombs, L. R., 1 P. & M. 288, 36 L. J. P. & M. 25; Prince v. Rowson, 1 Mod. 208. No. 4. - In re Rownson: Field v. White, 29 Ch. D. 359, 360. [BOWEN, L. J., referred to Shallcross v. Wright, 12 Beav. 558, 19 L. J. Ch. 443.] There is no direct authority in our favour with respect to a debt barred by the Statute of Frauds, but there is no authority against us, and there is no difference in principle between such a debt and one barred by the Statute of Limitations. The debt is a good one in foro conscientice, and an executor would not be committing a devastavit in paying it. We also rely on the delivery of the bills of exchange to White as a part performance of the parol promise. Hastings, Q. C., and F. C. Norton, for the plaintiffs, who were next of kin of the intestate: There is no sufficient evidence of the verbal promise by the intestate. The oath of Mr. White is not sufficient in itself, and his wife's testimony is no corroboration. Manning v. Purcell, 7 D. M. & G. 55; In re Finch. The delivery of the bills [* 360] to White could not amount to part performance. They were overdue bills which were practically worthless, and had no connection with the alleged promise. But whatever proof there is of the verbal promise it is within the 4th section of the Statute of Frauds, and could not be enforced. If it had been due to a stranger, the administratrix would have committed a devastavit in paying it, and for the same reason she could not retain it herself. It is admitted that there is no authority for the claim of the administratrix, but it is contended that the debt is analogous to a debt barred by the Statute of Limitations. But the right of an executor to pay or retain a debt barred by the Statute of Limitations is an exception to the general rule and ought not to be extended. An executor may not pay a debt which was incurred pro turpi causa: Winchcombe v. Bishop of Winchester, Hobart, 167, Robinson v. Gee, 1 Ves. Sen. 251; or for gaming: Manning v. Purcell, 7 D. M. & G. 55. In the case of a debt barred by the Statute of Limitations there is originally a good debt which may be enforced, and the Courts have been reluctant to prevent the executor from paying such a debt. In the present case there never was a debt which could be enforced. Shewen v. Vanderhorst, 2 Russ. & My. 75; Burke v. Jones, 2 V. & B. 275 (13 R. R. 83). [BOWEN, L. J., referred to Lavery v. Turley, 30 L. J. Ex. 49.] It is the duty of the executor or administrator to protect the estate of the deceased against claims which cannot be enforced. He is not to determine what debts are equitable and what are No. 4. In re Rownson: Field v. White, 29 Ch. D. 360, 361. -- not. Here the administratrix is claiming to be judge in her own cause. Oswald, in reply. March 24. COTTON, L. J.: This was an appeal of the defendant, who was the administratrix of the intestate in the case, from an order made by Mr. Justice KAY. The administratrix claimed a sum of £500, and interest to a certain date, and she claimed to retain it on this ground, that previous to her marriage her father, the intestate, had promised her husband to give her £500 as her portion in consider ation of the marriage, and that the promise had never [* 361] been in any way satisfied; and, therefore, after the death of the intestate, she, having taken out administration, claimed to retain the £500 and interest. I assume, for the purpose of my judgment, that there was evidence which would establish as a fact that such an agreement was made. I assume that only for the purpose of my judgment, for the promise was made a very great number of years ago, and the evidence as to what then took place, and as to what subsequently took place, is not very satisfactory, and would require a very great deal of examination if we had to determine the fact whether such an agreement was made or not. Now, this is an agreement which is subject to the restrictions of the 4th section of the Statute of Frauds. That section provides that after the date therein mentioned no actions shall be brought to charge a debt upon any agreement made upon consideration of marriage unless it is evidenced by writing. Here, there was no writing at all; there was a mere parol agreement, and no action. could be maintained upon that. Can the administratrix retain in respect of such an agreement? The duty of the administratrix is undoubtedly to get all the personal estate she can, and not to pay any claims made against the estate unless they are those which may properly be paid. If she pays unnecessarily then she is guilty of a devastavit. The right of retainer originated in this way. It is stated in Mr. Justice Williams' book on Executors, and, I think, accurately stated, that as any creditor could sue an administrator or executor, and could get priority by means of a judgment on his claim, if one enforceable at law, except as against any creditors of superior degree, it was unreasonable that an |