Opinion
June Term, 1822.
All the chattels of an intestate are assets, if the administrator by reasonable diligence might have possessed himself of them.
THIS was an action of assumpsit, to which defendant pleaded the general issue, no assets, and plene administravit. The plaintiff, to charge the defendant with assets, proved that the intestate died possessed of a personal estate much larger than would be sufficient to satisfy the plaintiff's demand, but that before administration was granted a trespasser took possession of all the assets and held them as his own. Administration was granted on 18 February, 1820, and the process of the plaintiff issued on 15 June, 1820. The trespasser was introduced as a witness, and proved that the defendant had never demanded of him the goods of his intestate. It was insisted on the trial below that it was the duty of the administrator to collect the goods of his intestate, and if he did not do so within reasonable time he was liable to account with creditors for the value of the goods which he might have recovered, and that they were assets. The presiding judge instructed the jury that the issue submitted to them was whether the administrator (16) had assets at the time the process issued, and the issue must be found in the defendant's favor unless the plaintiff could show that assets had actually been in the defendant's possession. A verdict was rendered for defendant, and, a motion for a new trial having been refused, plaintiff appealed.
Ruffin for the appellant.
The plea of fully administered avers that the defendant hath not, nor at the commencement of the suit or at any time since has had, any goods or chattels which were of his intestate at the time of his decease in his hands to be administered; and the replication to this plea puts in issue the question whether the defendant hath duly administered the assets up to the time of the plea pleaded (1 Saund., 336). The intestate died possessed of personal property to a greater amount than was necessary to pay the plaintiff's debt, but this was taken away by a trespasser before the defendant administered, and it appears that he has not demanded the property, nor made any effort to possess himself (17) of it. The question then arises, whether such property is, in contemplation of law, assets in the hands of the administrator? The property which an intestate possesses at the time of his death devolves on the administrator, who may bring trespass for an injury done to it, after the death of the intestate, and before administration. He may also bring trover, though he never had possession, and the sum recovered shall be assets in his hands, the property in these cases drawing after it the possession by relation. When the law thus arms him with these remedies, and enables him to convert into actual and productive assets everything personal which the intestate had a right to, it would be incongruous that his own negligence, fraud, or collusion, should furnish him with a defense against a creditor who can only reach the assets through the administrator. The correct principle is that all the chattels of the intestate are assets, if the administrator by reasonable diligence might have possessed himself of them. This the jury ought to have inquired into in the present case, but that being excluded by the court, there ought to be a
PER CURIAM. New trial.