Opinion
(December Term, 1831.)
When an executor sells the assets of his testator and takes a bond payable to himself, as executor, and dies leaving the bond uncollected: It was held, RUFFIN, J., dissentiente, in the absence of any evidence that the executor had appropriated the bond to his own use, that both at common law and under the Act of 1794 (Rev., ch. 415), "to explain and supply the deficiencies of certain acts of Assembly respecting sales by executors and administrators," the bond was of the assets of the testator, and an action on it might be brought by the administrator de bonis non.
THIS was an action of debt, originally commenced by warrant upon a bond executed to Stephen Eure, as administrator of John Tillery, upon the sale of the personal property of the intestate. After the execution of the bond, Stephen Eure died intestate, and administration de bonis non upon the estate of Tillery was then committed to the plaintiff. Upon the trial before Mangum, J., at HALIFAX, on the spring circuit of 1829, it was objected for the defendant that the bond was not evidence of a debt due by the defendant to the plaintiff, as administratrix of Tillery, but was only evidence of a debt due Stephen Eure in his lifetime, and that the action ought to have been brought by his administrator.
Devereux for plaintiff. (207)
No counsel for defendant.
Upon this objection, his Honor being of opinion with the defendant, nonsuited the plaintiff, who appealed.
If we resort to authority, we shall find that as soon as it was determined that an executor or an administrator could receive a bill or note as executor or administrator, and could sue thereon in his representative character, that those decisions were immediately followed by others, declaring that if the bill or note was not collected by the executor or administrator, but was left uncollected at his death, the right to collect and sue on it devolved upon the representative of the first testator, or intestate, as unadministered by the first representative. And were it not for a difference in the opinion of the Court, I should think that there could not be a doubt upon the question. Because the reason why the executor or administrator could sue in his representative character was that the bill or note was of the estate of his testator or intestate, yet to be administered. On no other principle could the action by him in that character be sustained. If unadministered by the first representative, the administration of it devolved on the administrator de bonis non, or the executor of the executor, as the case might be, who thereby became the executor of the first testator. In the case of the administrator de bonis non, his commission or letters of administration direct and authorize him to administer all the estate of the testator or intestate unadministered by A. B., the former executor or administrator. And the law makes the same injunction to the executor of the executor, as to the unadministered estate of the first testator. When it was held for law, as it once was, that an executor or administrator could not receive a bill or note in his representative character, and of course could not sue on it in that character, it is not to be wondered at that it was also held that if he died, holding a note or bill, although professed to be received in that capacity, and for a debt due to his testator or intestate, upon his death, his executor or administrator only could sue upon it, and the representative of the first testator or intestate could not. Indeed, it would have been wonderful if it had been held that the (208) representative of the first testator could have sued. For it would have presented a case where the administrator de bonis non could sue as such, where the first administrator or executor could sue only in his private and not in his representative character. It would be saying that the bill or note, in the hands of the first administrator or executor, was not of the estate of the testator or the intestate, but on the death of the executor or administrator it became so. The doctrine can only be attacked in the bud, in the right of the executor or administrator to receive a bill or note, as executor or administrator. For if that is admitted, I think the other follows of course. In deciding this case, I have no interest to support or deny the modern doctrine of the English courts that he can. Indeed, it seems now to be universally admitted there ever since the case of King v. Thom, 1 T. R., 487, that executors or administrators may receive bills or notes in their official character. The doctrine has been gradually extending itself to other official acts. And in the case of Catherwood v. Chabaud, 8 Eng. C. L., 45, where the assignment was to the administrator generally, not as administrator, yet being for a debt due to the intestate, the bill being uncollected by the administratrix in her lifetime, it was held that it devolved on the administrator de bonis non, as assets of the estate of the first intestate, to be administered by him as unadministered by the first administratrix.
I said I felt no interest in supporting the English decisions that an executor or administrator, as such, might receive a bill or note, in order to support the opinion I have formed. For be that as it may in England, they can certainly in this State take bills, bonds, and notes in their representative character. The acts of our Legislature direct executors and administrators to sell the estate of their testator or intestate on a credit, to take bonds with surety; that the money, when collected, shall be assets, and prescribe how judgments shall be entered against them before collection. Argument is useless, I think, to prove that they hold the evidences of these debts in their official and not in their individual character. The money due on the sales is not assets until (209) collected. They may, therefore, sue on these bonds, as executors or administrators, for they are of the estate of their testator or intestate unadministered. If they can, and should die before they do, the administrator de bonis non certainly can and must. They devolve on him as unadministered assets of the first testator or intestate. It is said that inconveniences will result from giving this right to the administrator de bonis non to sue, as that the first executor or administrator will lose his right to retain for his own debt, and his opportunity of reimbursing himself for advances. Not so. He has nothing to do, but by some overt act, to make an appropriation, and the debt is his. It is administered. This, however, is not a contest between the two representatives, but the debtor sets up this defense against the administrator de bonis non. Besides, we find this bond in the hands of the administrator de bonis non, and we must presume it came rightfully there. But if the law is settled, inconveniences cannot alter it. They can only be thrown in, in doubtful cases, to show how the law is, and, I think, from our acts of Assembly, were it not for the difference of opinion that this is not one of those doubtful cases where inconveniences should have any weight. But I think the inconveniences are the other way. If this be as contended for, that is, the first administrator's own debt (and they who hold that the administrator de bonis non cannot sue affirm it), if the defendant, the purchaser at the sale, have a debt against the first administrator, he may unjustly against his will. For nothing can prevent such debt being a set-off, if the note be the first administrator's. They are due, then, in the same right; that is, both individually. They are therefore mutual. Thus, the whole property may be swept away by the creditors of the administrator purchasing up the property at the executor's or administrator's sale, and setting off their debts against the executor or administrator. A further inconvenience will follow. The administrator de bonis non must stand by and wait the pleasure of the representative of the first administrator or executor in the collection of the (210) debts, and his further pleasure in paying them over to him, after he has collected them, when it might be done at once by authorizing the administrator de bonis non to collect them.
As to the objection that it does not appear that Tillery was the first administrator, the bond shows it, as to this defendant. But if it did not, the letters de bonis non, of which the court had a profert, do. They are to administer all the goods not administered by Tillery, the former administrator. I have taken it for granted that this is a bond taken at a sale of the assets.
It was held in Jenkins v. Plombe, 6 Mod., 181, that where an executor sued as such, but might have sued in his own name, he was liable for costs. Sayer's Law of Costs; Atkey v. Heard, Cro. Car., 219. And that was the reason given why counts in such an action could not be joined with counts in an action where an executor could sue only as executor, because it was said he was liable for costs in the first case, but not in the latter ( Rogers v. Cooke, 1 Salk., 10; S. c., 1 Show., 366), and because the costs were entire and could not be severed. Betts v. Michell, 10 Mod., 316. The objection, therefore, would not lie against either suit, when brought singly, although in the name of the executor.
In other cases, however, the validity of this objection seems to be impaired, for in Bull v. Palmer, 2 Lev., 165, the plaintiff charged that the defendant covenanted with him as executor, and was nonsuited. It was held that as the action was brought in right of his executorship, and the money, if recovered, would be assets, he should not pay costs. Portman v. Came, Str., 682; Peacock v. Steere, Cro. Car., 29; Mason v. Jackson, 3 Lev., 60.
In another and a later case the question was, not concerning costs, but whether executors to whom a bill of exchange had been endorsed could sue upon it as executors. It was held that they could, because, amongst the reasons, it was said that the money, when recovered, would be considered as assets. King v. Thom, 1 Term, 487.
(211) In a still later case, in an action of trover by an executrix for a conversion in the testator's lifetime, and also for a trover and conversion after his death, on a nonsuit it was held that the plaintiff was not liable for costs. And Buller stated that whether the conversion was before or after, if the goods, when recovered, would be assets in the hands of the executrix, she must sue for them in her representative character. King v. St. Mary, 4 Term, 477.
It was said in Cowell v. Watts, 6 East, 405, that the correct and rational rule is that counts may be joined in which the money, if recovered, will be assets. Petrie v. Hannay, 3 Term, 659.
In the late case of Catherwood v. Chabaud, 8 Eng. C. L., 45, it was held that where a bill of exchange was endorsed generally, but delivered to S.C. as administratrix for a debt due to the intestate, and S.C. died intestate after the bill became due, and before it was paid, the administrator de bonis non could sue upon the bill. The money, in case it had been received by S.C. upon the bill of exchange, would have been assets of the estate of the intestate. As it was not received, the plaintiffs, the administrators de bonis non, had a right to sue for it.
This last case seems to be decisive of the one before the Court. The note in question was given to Stephen Eure, as administrator of John Tillery. When Stephen Eure died, and letters of administration were granted to the plaintiff, she had a right to institute the present action, according to the principles laid down in the foregoing authorities. Whether the debt was recovered by Stephen Eure, the former administrator, or by the present plaintiff, the administratrix de bonis non, it is assets of the estate of John Tillery. I therefore think the nonsuit should be set aside and a new trial granted.