Rachel Broach and Robert M. Broach vs. Walker.

removed the officer-unlike the removals under the Act of 1821 — here the office and officer simultaneously expired; under it the office remains unchanged, untouched; the officer only is displaced. In this latter case the officer's misconduct is the cause of his amotion, it is therefore his act.

The case of Thomas vs. Hardwick, 1 Kelly R. 78, is relied on by plaintiffs' counsel as entirely analogous to this, and decisive of it. Its facts and principles are both dissimilar. Hardwick, on the appeal, pleaded puis darrein continuance that his letters testamentary had been revoked, and he removed from his executorship, and asked that the suit abate.

There was no allegation in that plea of having delivered over the assets in his hands, and admitted so to be by the plea on the record of plene administravit præter to his successor the administrator de bonis non.

Hardwick was removed for mismanagement from office. The Act of 1821 expressly prohibits the abatement of a suit in the case of a revocation of the letters testamentary of an executor who has mismanaged the estate in his care. This act furnishes the exception to the general rule of the common law in reference to the abatement of suits. In all other cases the common law principle remains, and this is admitted by the opinion of the Court. The palpable differences in the cases consist in

First. The removal of the one by the act of the law, of the other by his own act.

Second. In the facts averred in the respective pleas of puis dør

rein continuance.

Third. One had assets in hand, and sought, with the brand of censure on his brow, shelter under that condemnation from a liability not only incurred, but distinctly admitted by his plea. The other, without assets in hand, and without any fault or agency on his part in causing the recall of his letters, simply asked protection from annoyance by continued suit, as there was no fund to be reached by the judgment if given against him.

By the Court-LUMPKIN, J. delivering the opinion.

George Walker, it seems, qualified as executor upon the last will of John Martin, deceased; and in that character he was sued by the representatives of George Broach, deceased, for a debt due by the testator of the one party to the testator of the other. Under

Rachel Broach and Robert M. Broach vs. Walker.

the act of 1834, Prince, 254, making marriage or the subsequent birth of a child for which no provision is made, sufficient cause to set aside a will, George Walker's letters were revoked, and an intestacy declared upon the estate of John Martin pending the suit,

at the instance of Broach's estate.

George Walker immediately turned over to his successor, all the assets in his hands not already administered, and pleaded this settlement in bar of his liability.

It was held to be a good defence by Judge Scarborough; [1.] and we are called upon in this writ of error to reverse this judgment. No direct authority upon the question has been produced. The conviction of our mind is, upon the law as well as the reason of the case, that the judgment below should be affirmed.

I find, upon research since the argument, that this doctrine has undergone a thorough examination by the Court of Appeals of Virginia.

In Hunt vs. Wilkinson, 2 Call R. 41, administration was granted upon the estate of Charles Hunt, deceased. Wilkinson brought debt against the administratrix, and at June Rules obtained an office judgment. At the succeeding quarterly court, on the motion of the defendant, the office judgment was set aside, and Mrs. Hunt was permitted to plead "that since the institution of this suit, and during the pendency thereof, to wit, on the 20th day of July, 1795, the will of Charles Hunt, deceased, duly authenticated and proven, was committed to record by the proper court, and administration with the will annexed, was granted to her in due form of law; whereby she became bound to surrender her letters of administration previously granted before the appearance of the said will; in which case she ought to be sued as administratrix with the will annexed of Charles Hunt, deceased, and not as administratratrix, as in the plaintiff's writ is alleged. Wherefore she prays judgment of the said declaration, that the same be quashed."

The plaintiff objected, that the plea ought not to be received, but was overruled by the court, and thereupon he filed a bill of exceptions. The District Court were of the opinion that the judg ment of the County Court was erroneous, "because that court permitted the defendant to set aside the office judgment, by filing a plea puis darrein continuance in abatement of the writ, which was inadmissible."

From this decision an appeal was taken. For the judgment of the District Court it was insisted, as a well established rule, that a

Rachel Broach and Robert M. Broach vs. Walker.

snit shall not abate by subsequent matter without plaintiff's fault; as if a feme-sole marries, the defendant is knighted, or an executor de son tort becomes administrator during the progress of the suit. The second administration did not, therefore, abate the writ in the present case, when there was no fault on the part of the plaintiff, whose suit was rightly begun.

case.

The judgment however of the District Court, was reversed and that of the County Court affirmed, and that after two solemn arguments. Fleming, Judge, says "there are two questions in this First. Whether such a plea as this will abate a suit at all! and if so, second, whether it could be pleaded after an office judg ment? With regard to the first question, it seems to me to stand precisely on the same ground as if the administration with the will annexed had been granted to some other person, and in that case I think it clear, that it would have abated the suit, because in her first character of general administratrix, she was bound to make distribution according to the statute; but when the will was annexed to the second administration, it was necessary to conform to that, as far as the nature of things would admit. I think therefore that there was such a change produced by the second administration, as ought to have abated a suit brought against the defendant under her first character. The one administration was a complete supersedeas to the other. And this matter could only be pleaded in the form of a plea puis darrein continuance. For as it did not exist at the time of the office judgment, it could not then be pleaded; and unless it could be pleaded in this form, of course it could not be taken advantage of any how.. Upon the whole, I think that the judgment of the County Court was right."

Carrington, Judge. "In this case, at the time of the office judgment Mrs. Hunt was defendant in her character of general administratrix; but before the end of the next term, that character had ceased, and all her powers in that capacity were done away and destroyed in the production and proof of the will, so that she was no longer general administratrix, but was then acting in a character correspondent to that of executrix, charged with the execution of the will instead of the statutory administration; and the will might have contained very different provisions from those directed by law in case of an intestacy. Besides, upon all judgments an execution necessarily follows, or the judgment would be of no use to the plaintiff. Now, in the present case, if a judgment were rendered how would the execution issue? Not against the estate

Rachel Broach and Robert M. Broach vs. Walker.

in the hands of the general administratrix to be administered, because there would be no such character in existence conversant in the administration. In such a case, the officer would not and could not have obeyed the precept. Neither could it have issued against the estate in her hands to be administered as administratrix with the will annexed, because the execution must have pursued the writ, and the clerk neither could or would have varied it from the terms of the record. The judgment therefore would have been wholly useless. Under every point of view then, I think the proceedings of the York Court are correct."

Lyons, Judge, upon the re-hearing. "By considering the character of the defendant as changed, no inconvenience will result, whereas a contrary doctrine might involve the securities and create mischief. But if her character be entirely changed, and the estate, by operation of law, transferred to her in her new character, it seems to me that it must necessarily abate the suit; as a change of character without any fault in the defendant, constantly has that effect. Thus all suits cease, when administration during minority, ceases; and so do the actions against such administrator, according to the rule in Pigot's Case, 5 Coke R. 29; Brownhead vs. Spencer, 2 Brownl. R. 247; 2 Wentw. 138.

"If the administration is repealed, the administrator cannot take ♦ out execution, because his title is taken away. Barnehurst vs. Sir Ch. Yelverton, Yelverton R. 82; 2 Wentw. 137.

"An executor cannot found an action on what he did as administrator, although he be the same person, and might have released; for he ought not to have an action in this manner. Sir Hen. Slingsby vs. Lambert et ux. Cro. Jac. 394; Brudnell's Case, 5 Coke R. 9; Robinson's Case, Ibid. 33.

"These cases are in principle the same as that at bar, and therefore appear to me to decide the question.

"It was objected that the plea should have been sooner filed. But to this I answer, that the defendant had no day in court, as the fact had happened since the last continuance, as it were, and therefore was pleadable at that time. For whenever the cause of abatement happens after the last continuance of the suit, it may be pleaded in that manner; because the defendant had no day in court to plead it in any other form. And the reason is the same where the fact happens after the judgment in the clerk's office, for the defendant should have an opportunity of showing the change in his situation; but as this cannot be done when it takes place after

Rachel Broach and Robert M. Broach es. Walker.

the judgment in the office, he should be allowed to do it afterwards. Upon the whole I think that the judgment of the District Court should be reversed.”

Pendleton, President. "If the administration with the will annexed had been granted to a third person, there could have been no doubt, since her authority being at an end, all pending suits against her as administratrix must have ceased with it. And the only difficulty arises from the second administration having been granted to herself, as she is to be still sued, although in a different character. We think, upon principle, that she ought to be proceeded against in her new and true character. By her second appointment, her first set of securities are discharged; and yet they might be involved if creditors might proceed in their suits upon the first administration. I am satisfied, and so concur in opinion with the other three judges, that the judgment of the County Court should be affirmed."

This case needs no comment. In it the estate was changed from an intestacy to a testacy; in that under discussion from a testacy to an intestacy. Still, mutatis mutandis, after making the necessary changes, the reasoning is precisely the same. And it is worthy of remark, that the only difficulty and contrariety of opinion, either with counsel or the court in the Virginia case, grew out of the circumstance of the management of the estate having been confided to the same person. All agree, that if the first and second representatives were different, the action, it was clear, could not proceed. Besides, this learned bench appear to have thought the bare fact of a revocation of the former authority, and the second appointment, enough of itself to arrest the further progress of the suit, without requiring the defendant to aver and prove that the assets in hand remaining unadministered, had been delivered over to the successor.

It was urged in argument, that plene administrarit after suit commenced, was never admissible, nor any other defence which would go to the discharge of the defendant from a liability already incurred. And this position was assumed from several dicta to be found in the books; as for instance, it is stated in Lomax on Executors that a defendant sued as administrator, may plead, that pendente brere administration was committed to another; (1 vol. 202,) that is, after suing out of the original writ and before declaration filed. And again, when a defendant would plead the revocation of his administration, before the action commenced, &c.