by the fall of stocks. (f) Nor, as it seems, shall he be so liable, although, without the indemnity of a decree, he lend money on a real security, which at the time there was no reason to suspect. (g) It has been held that trustees lending money on personal security, is not of itself such gross neglect as to amount to a breach of trust. (h) But it has since been decided that an executor cannot lend money on personal security, though words which may imply a discretion so to do are used by the testator in his will. (i) Nor will a power to lend money upon real or personal security, enable trustees to accommodate a trader with a loan upon his bond. (k) An executor has an honest discretion to call in a debt bearing interest, if he conceive it to be in hazard. () If an executor [429] merely give a receipt for so much due on a bond as he in fact receives, he shall not be charged with a devastavit for the residue. (m) Nor is a conversion of the goods of the testator to his own use a devastavit, if he pay debts of the testator to the value with his own money. (n) Nor is he so liable if he pay a debt of an inferior nature out of his own purse to the amount of the testator's effects in his hands; for they remain equally liable to the claim of the superior creditor, and may be seised equally at his suit in execution in specie, as the testator's property. (o) Nor, if the executor compound an action of trover for the goods of the testator, and take a bond for the money payable at a future day, does that act necessarily amount to a devastavit, as the money, for which the bond is taken, is assets immediately. (p) But he shall be charged, as we have seen, (q) in case there be a failure in the payment of it. Nor shall an administrator be charged, who having arrested a debtor, or who applied to come out of prison under the insolvent act, and obtained all he could from him or was likely to get. (q) If there be arrears of rent on a lease, and on the tenant's becoming insolvent, the executor release the arrears, and give him a sum of money to quit possession; in case he appear thus to have acted for the benefit of the estate, he shall be allowed both. (r) Nor is an executor, as we have seen, (s) bound to plead the statute of limitations to an action commenced against him by a creditor of the testator. If an executor become bankrupt, having wasted the assets, the devastavit may be proved under the commission. (†) Where a specific legacy was given to an executor, who afterwards became bankrupt and committed a devastavit, and the subject of the specific bequest was sold by his assignees, it was held, that the produce in their hands was not specifically liable to make good the devastavit, in favour of the parties beneficially entitled under the will, but that such parties were only entitled to prove under the commission to the amount of the devastavit. (v) [430] If the husband of an executrix commit a devastavit, in case the executorship commenced before the marriage, they shall both be chargeable. If it commenced subsequently to the marriage, the husband is liable alone. If an executrix commit a devastavit, and afterwards marry, the husband we have seen, as well as the wife, is responsible during the coverture. (u) A devastavit by one executor shall not charge his companion; (w) and if there be several executors or adminis (9) Pennington v. Healey, 1 Crom. & Mees. 402. S. C. 3 Tyrw. 319. (r) Blue v. Marshall, 3 P. Wms. 381. (s) Vide supra, 343. (t) Whitmarsh's B. L. 2d edit. 269. (v)Gearyv.Beaumont,3 Meriv.431. (u) Beynon v. Gollins, 2 Bro. Ch. Rep. 323. Vide supra, 358, 359. (w) Off. Ex. 161, 162. Dyer, 210. 3 Bac. Abr. 31. Littlehales v. Gascoyne, 3 Bro. Ch. Rep. 74, and vide infra. trators, each shall be liable only for what he receives, (x) provided he hath not intentionally or otherwise contributed to the devastavit of the other. (y) But an executor administering, having once received money, assets of his testator, cannot discharge himself under the plea of plene administravit to an action by a bond-creditor of his testator, by shewing that he paid the money over to his co-executor, even for the purpose of satisfying the bond-creditor who had applied for payment of such co-executor, if the co-executor afterward misapplied the money by retaining it to satisfy his own simple contract debt. (~) Formerly, the executor of an executor could not be charged by a devastavit committed by the first executor, although to the prejudice of the king, for it was held to be a tort, (a) and, therefore, to die with the party. But by the stat. 4 & 5 Wm. & M. c. 24, s. 12, an executor of an executor shall be liable on a devastavit committed by his testator, in the same manner as he would have been if living. [431] CHAP. X. OF REMEDIES FOR AND AGAINST EXECUTORS, AND ADMINISTRATORS, AT LAW AND IN EQUITY. SECT. I. Of remedies for executors and administrators at law. BEFORE I Conclude, it will be necessary to consider, first, what remedies, either at law or in equity, executors or ad (a) Barnes, 440. (y) Vide infra. (z) Crosse v. Smith, 7 East, 246. (a) Tucke's case, 3 Leon. 241. Beynon v. Gollins, 2 Bro. Ch. Rep. 324. ministrators are entitled to, in right of the deceased; and then, secondly, what remedies may be had against them. In regard to the first of these points, the subject has been in a great measure anticipated by the discussion of the executor's interest in the testator's choses in action, (a) the existence of which necessarily supposes a remedy to give it effect. From what has been already stated it appears, that the executor represents the testator in respect to all his personal contracts: therefore he may maintain such actions to enforce them as might have been maintained by the testator him[432] self (b). Thus an executor may have an action on a debt due to the testator by judgment, statute, recognizance, obligation, or other specialty. (c) So he is entitled to an action of debt suggesting a devastavit in the lifetime of his testator, on a judgment recovered by such testator against an executor. (d) So the executor of the assignee of a bail-bond shall have an action upon it. (e) So an executor may maintain an action on a bond, though conditioned for the performance of an award. (f) He may also have an action on a covenant entered into with the testator for payment of rent under a lease granted by the testator for a term longer than his own, during the continuance of the testator's term; (f) and also to perform a personal thing; (g) and for work, labour, and materials found by him as executor, in completing a contract entered into by his testator; (gg) and for goods sold as executors, in carrying on the testator's business; (h) and even on a covenant that touches the realty, (a) Vide supra, 157. (b) 3 Bac. Abr. 59, 91. Countess of Rutland v. Rutland, Cro. Eliz. 377. Latch. 167. Roll. Abr. 912. Off. Ex. 65. (c) Com. Dig. Admon. B. 13. (d) Berwick v. Andrews, 1 Salk. 314. Mod. Ca. 126. S. C. L.Raym. 971. 1502. Vide Erving v. Peters, 3 Term Rep. 685. (e) Fort. 367. (f) Baker v. Gostling, 1 Bing. N. C. 19. (g) Latch. 168. (gg) Marshall v. Broadhurst, 1 Tyrw. 348. (h) Aspinall v. Wake, 10 Bing. 51. as for assuring lands, if it were broken in the testator's lifetime; and in such cases damages shall be recovered by the executor, although he be not expressly named; (h) for since the testator was entitled to an action of covenant for such breach and to recover damages as the principal remedy, and not merely accessary, the law devolves such remedy on the executor; but if waste be committed by the lessee in the lifetime of the lessor, after his death his heir can have no action for the waste, because he cannot recover treble damages; nor can the executor have it, for he has no right to [433] recover the place wasted, the inheritance of which has descended to the heir. (i) The executor may also, in the right of the testator, maintain an action on simple contracts, in writing, or not in writing, either express or implied; (k) and even on contracts for the benefit of a third person. (7) He may likewise have an action for a relief due to the testator. (m) And pursuant to the stat. 13 Ed. 1, West. 2, c. 23, an executor is entitled to an action of account on an account with his testator; (n) but this species of remedy in the courts of law has fallen into disuse. He may also, by the express provision of the stat. 4 Ed. 3, c. 7, have an action of trespass for the taking of the testator's goods and although the statute speak only of the carrying away of goods, yet its operation is not confined to that specific trespass, which is named merely for an example; but it has been held, as we have seen, (o) to comprehend other injuries to the testator's personal estate : (p) therefore on this statute, an action will lie for trespass with cattle on his leasehold premises; (q) or for cutting corn, though growing on his freehold lands, and carrying it away at the same time. (r) (h) Com. Dig. Admon. B. 13. Covenant, B. 1. 3 Bac. Abr. 91. Lucy v. Levington, 2 Lev. 26. S. C. Ventr. 175. Off. Ex. 65. (i) Off. Ex. 65. Com. Dig. Waste, C. 3. 2 Inst. 305. (k) Com. Dig. Admon. B. 13. 3 Bac. Abr. 59, 92. Petrie v. Hannay, 3 Term Rep. 660. (1) Al. 1. (m) Noy. 43. Ld. St. John v. Brandring, Cro. Eliz. 883. (n) Com. Dig. Admon. B. 13. (0) Supra, 158. (p) Com. Dig. Admon. B. 13. Semb. Latch. 168. (q) Off. Ex. 67, 68. (r) Emerson v. Emerson, 1 Ventr. 187. |