Opinion
July, 1796 (Adjourned).
Miller and Fisher for the plaintiff. Ridgely and Bayard for the defendant
The plaintiff's wife was one of the residuary legatees of Matthew Helford, who by his last will appointed the defendant's intestate one of his executors, and who was the surviving executor at the time of his death the 25th of November, 1797. Thomas Helford, the intestate, passed an administration account as executor of Matthew and upon that account there was a balance due to the residuary legatees of £61.1.3. The present action was brought to recover what was due to the plaintiff's wife as one of the residuary legatees. When the cause was gone through on the part of the plaintiff the defendant's counsel moved for a nonsuit.
They stated that this action being against Robert Helford, administrator of Thomas Helford, was to be considered in the same light as an action against Thomas in his own right. That Thomas being the surviving executor of Matthew, that the plaintiff's wife had a claim against the residuary assets in the hands of the executor. Yet that no action would lie at common law against the executor to recover it. That an express promise where there were assets would support assumpsit against an executor. And so was the case of Atkins and Wife v. Hill, Cowp. 284. But that assets were not a sufficient ground to imply a promise in order to maintain an action at law. This was recently held in the case of Deeks and Wife v. Street, 5 Term 690. Such also must have been the opinion of the legislature when they gave the remedy at law contained in the Act of Assembly page [—]. That Act properly avoids the inconveniences of a legatee suing at law by providing suitable conditions for the security of the executor. That in the case of Eavans v. Eavans in Sussex this Court held in a suit for a negro boy by a legatee where no bond was given pursuant to the Act of Assembly that the plaintiff could not recover. They insisted that no action of the present kind had ever been maintained in the state.
Blank in manuscript The reference appears to be to the Act at 1 Del. Laws 87.
The counsel for the plaintiff admitted that the action was at common law and contended that it was maintainable in this Court independent of the Act of Assembly. It was admitted, they said, that an executor having assets and promising to pay, — the consideration was good, and that an action would lie. The present case could not be considered as falling short of an express promise. The intestate had passed an administration account and charged himself with a balance. Part of this balance was due to the plaintiff's wife, and the settlement of the account is equivalent to an express promise to pay the balance to the residuary legatees. They conceived however that an express promise was not necessary to maintain the suit. That in the case of Atkins v. Hill, Cowp. 284, though the general question was not before the court a strong opinion is intimated by Lord Mansfield that the action would lie where there were assets upon an implied promise. And the case in Sty. 55, cited in Cowp. 286, goes the whole length of the present question. As to the Act of Assembly which gives a remedy at law for a legacy, that remedy is cumulative. If the remedy previously existed at law, the Act of Assembly certainly did not take it away. Such is the principle of the case in 2 Burr. 799. And in the case of Freeman v. Hall the Supreme Court held that an action would lie for taxes notwithstanding the remedy given by the Act of Assembly.
The CHIEF JUSTICE delivered the opinion of the Court. The Court have carefully attended to what has been urged in maintenance of the present action and cannot say that they feel any embarrassment in determining that the action does not lie. The case in Cowper was the case of an express promise, and the case in 5 Term is in point that an action will not lie upon an implied promise. The settlement of an administration account is not in the nature of an express promise more than filing an inventory. It is merely a statement of the extent of the administration, but there may be other debts to pay, and it would therefore be unjust even to imply a promise to pay the balance to legatees. I have always been of opinion, and my colleague agrees with me (JUSTICE JOHNS) , that an action at common law would not lie for a legacy without an express promise in consideration of assets.
The Act of Assembly referred to was certainly passed on the principle that in the cases it provides for there was no remedy at common law. The provisions of the Act for the security of the executor are drawn from the practice of the courts of equity where the proper remedy was formerly to be found in cases of the present kind. The judgment under the Act is de bonis testatoris; if this action were maintainable the judgment would always be against the executor in his own right. The Act also makes provision for the convenient settlement of the question of assets and compels the legatee to give bond to refund if future debts should be recovered. We are clearly of opinion that the plaintiff has failed in supporting his suit, and that the motion for a nonsuit ought to be granted.
Whereupon the plaintiff was called and nonsuited.
Bayard's Notebook, 147.
In the last vacation McDONOUGH, one of the Associate Judges of the Common Pleas, died and was succeeded by KENSEY JOHNS, Esquire, who sat upon the bench during the present circuit.