Con. § 3 con. The first act in Virginia, that required executors 1 CH. 29. to give bond, was enacted in 1711, and related only to sus- Art. 2. pected executors. This act prescribed the form, also, of administrator's bonds, and oaths of executors and administrators, all in the same form, and in the forms of those prescribed by 22d and 23d Ch. II, and extended not to the proceeds of land sold in Virginia, as they did not in England. Condition 2 Rand. 493— is confined to goods, chattels, or credits, and these only were 494. meant by the word estate. If the executor claim sums of p. 497, & pp. money advanced to him by the testator, as a gift and not as a 507–514. loan, this claim will not be allowed on the executor's own oath and slight circumstances. In the same manner was the word estate, in the condition of the probate bond in Massachusetts, construed prior to the year 1818. son. § 6 con. This bond in Kentucky, is somewhat different. 1 Litt. 99. The sureties in administration bonds, are bound for the legal distribution, though declared to be real estate. They are not 1 Litt. 95, Barliable for the default of the principal in payınents to distribu- bour v. Roberttees; though they are not liable unless the administration bond Baltzell v. provides for the distribution of the surplus among the heirs, Hall, 1 Litt. yet the administrator himself is liable to the same extent that he would be if the bond had conformed to the law. See, also, 2 Bibb. 292; 1 Marsh. 488--492. 100. 172-118. $2 con. There can be no license to sell where executors ART. 3. give bonds to pay debts and legacies, nor is there need of any, Con. for such executors can sell. It is the duty of executors and 16 Mass. R. administrators to plead the act of limitations. The creditor, to levy on the real estate of the deceased, must sue in season. A license to sell, to pay debts or legacies, will not be granted after they are barred by said act; p. 429, may waive the general statute of limitations, not the special one, 1788, ch. 66. See limitations, ch. 161; see p. 432--433; p. 449, an administrator is not liable to account for buildings erected by his intestate on his wife's land. 80. § 6. Where an administrator may recover a note, his in- 1 Pick. R. 71-testate could not. On a promise of marriage broken by the promissor, an action lies not against his administrator. The promissor died, pending the action against him. Held, it did not survive. The female promisee alledged no special damage. The court rather viewed it a case of tort, where there is a duty, as well as a wrong, an action will survive against the executor.' 4. An administrator may occupy his intestate's real estate ART. 3. with the consent of the heirs, accounting for the agreed rent, or Con. as settled on stat. June 22, 1789, (ch. 11.) Any clear mis- 1 Pick. R. 157take in an administrator's account, may be corrected before I. CH. 29, the final settlement of the estate, p. 530. Where the administrator is liable to pay interest, and 1 Jacob & W. 39. If an executor pay to creditors more than the amount of the personal estate, he makes it his own, 64. Art. 3. Stone. cited Thomas ART. 4. § 3 con. The creditor made the debtor his executor, and Con. the court by Sutherland, J. seem to be of opinion the debt 2 Cowen, 781- was extinguished. He said, p. 807, the rule is universal, 810, Marvin v. that when the remedy is suspended by the act of the party, entitled to it, it is destroyed forever.' This may be true, and the action may be suspended, but the principle hardly applies to the case of a debtor made executor, for though the action is suspended, all remedy is not, for the probate court may hold the executor to account for the debt, as assets in his hands, Sutherland, J. and to this purpose he may be sued in the probate bond. In v. Thompson, this case the general rule is admitted by the court, but the exceptions are much relied on; nor was it a question of assets in the probate court: Rely on Wankford v. Wankford; 3 Bac. Abr. 119; Sutherland, J. also, cited to support the general rule, Toll. L. Ex. 272, 8 Co. 136; Bac. Abr. Ex. A. 10; 2 Bl. Com. 512, R. Cow. 184, Wankford v. Wankford; 1 Salk. 299; 11 Mass. R. 269; 12, id. 201; Off. Ex. 31. The true principle is stated 12 Mass. R. 199--205; Winship v. Bass, &c.; See s. 20, this article. The court in New York, held the executor's debt, he owed the testator, assets towards paying his debts, but not for the benefit of the next of kin or of general legatees, unless it appears on the whole will, the testator means not to discharge the debt; then the executor is trustee for them, to the amount of his debt. adm'x. 2 Johns. R. 471477. 19 con. If the authority be given to them virtute officii, so an acting executor, where the other renounces by 21. H. 8, ch. 4, Smith's lessee, v. Folwell; 1 Binn. 546; Jackson v. Ferris, 15 Johns. R. 348; Nelson v. Carrington, 4 Munf. 332; Miller v. White, Tay. R. 309: Secus, if a naked power, Woodbridge's heir v. Watkings, 3 Bibb's Rep. 349. where a testator devises land to be sold, and names And one to sell, the executor must sell, wherever the purchase money is to be applied to the payment of debts, or be distributed 4 Har & M'H. as legacies. Sugden on Powers, 167--173. 485-487; 1 Hop. Ch. R. 515-529, Rogers & al. v. Rogers & al. no Two executors, empowered by will to sell lands after letters, &c., granted, one relinquishes the trust, the other may sell. If A be indebted to B, and A makes B his executor, and B gets judgment against A in his lifetime, and after A's death sells his lands on B's execution, and B himself purchases, his purchase is vacated; he can no more purchase than any other trustee can, who sells. An executor, administrator, or any other acting in trust, can in no case buy when he sells. As the seller of another's property he holds in trust, it is his duty to I. CH. 29. get the best price, but as buyer, his interest is to reduce the Art. 4. price. Con. 3 Cowen, 651 The testator directed his estate to be sold, &c. after his wife's death, and appointed A and B, two strangers, and bis Sharpsteen in son J, executors to execute his will. A and B alone proved Error v.Tellou the will; the widow and J and other children being dead, A 662. and B sold the real estate. Held, 1. The testator's objects being in a measure defeated by the deaths, &c. the power itself failed, so the sale was void as far as the vendee's title depended on it, and so far the estate descended to the heirs at law 2. Where a testator directs his executors to sell land, it seems this is a naked authority not coupled with an interest. There is no estate vested in the executor, as such; and on the death of one them, the power does not survive at common law 3. It seems 1 R. L. 366, s. 11, only provides for the case of an executor who refuses to act : 4. In case of several executors having a naked power, and one dies, it ceases, though he never qualified as executor. Bergen v. Bennet, 1 Cains. Cases in Err. 16; 6 Johns. R. 73--81; Jackson v. Jansen, testator's object ceased; 16 Johns. R. 167, Jackson v. Given, id.; as to the power cited, 2 Johns. ch. R. 20; 14 Johns. R. 527, S. C.; on appeal, id. 553, same case, Osgood v. Franklin; Jackson v. Ferriss, 15 Johns, 346; other cases in Johnson; Gebach v. Smith, 3 Binn. R. 69; Pow. on Devises, 291310; 3 Salk, 277; Co. L. 113, a. ; id. 181, c.; id. 236; ard. 415; Toll. L. E. 171--2-3, 304. H 2 As to an executor of his own wrong. 2 N. H. Rep. ART. 6. 475, &c., Neal v. Baker, executor, and Clements v. Swain. Con. Where the estate is insolvent, and he voluntarily pays some creditors double the amount of debts received, he is still liable, and though he takes out letters of administration after he is sued. $ 11. Misuse of testator's property. An executor commits 2 Rand. 294a fraud, when he applies or pledges to his own use, the prop- 303. erty of his testator, when not in advance to the estate, and the purchaser or mortgagee, with notice thereof at the time of the purchase, &c., will be decreed to make restitution; but if no such notice, he will be protected as a purchaser, &c. without notice. The executor gave a deed of trust, of slaves and goods, to secure, an old debt of his own. This principle asserted, the executor holds the legal title of the testator's effects, in trust for creditors, and legatees, specific, pecuniary, or residuary, and if there be fraud and notice as above, they, and also the administrator de bonis non, may question the sale or mortgage, cited 4 D. & E. 621; 11 Ves. Jr. 421, 1. CH. 29. Plowden, 525; 5 Ves. Jr. 211--212; 7 Ves. 152; 14 Ves. Art. 6. 352; Liverinore, 129--130; 3 Munf. 7; 17 Ves. 153; well observed the purchaser can have no temptation to pay his money for questionable title. The same as to the mortgagee who lends his money at the time of the pledge given. Con. 2 Rand. 483507, Jones v. Hobson. ART. 7. Con. 12. Sureties of executors how far held. 1. Not held for proceeds of land sold by the executor under the will: 2. Not for the acts of his executor in the administration of the assets of the first testator: 3. Executor and sureties are sued, and he confesses assets &c., court of equity may decree immediately against him, and leave the creditor to proceed against the sureties by motion, if it should become necessary. And where the administrator so comes in and fails to support the action, costs are taxed against the estate of the intestate. 2 Pick. R. 68, Brooks, &c. administrators, v. Stevens in error. See 16 Mass. R. 530. 9. And in cases of insolvency. The intestate is sued, and dies pending the action; his administrator assumes the 2 Greenl. 109- defence, and omits to suggest the insolvency on record, or pray 113, Sturgis v. a stay of execution; hence it is issued and returned nulla Reed, admin- bona; it is waste, and the administrator is liable to a judgment istrator. Ross v. Luther, en, 158-163. and execution de bonis propriis. After an execution has been regularly issued and returned, it cannot be set aside. Not enough the administrator's attorney mentioned the insolvency verbally to the court, when he should have taken the proper course on record. 2 N. H. Rep. 36. § 10. Debt for an escape of Wait, a prisoner, on ca. sa. from Sheriff, 4 Cow-gaol limits. Held, 1. The issuing of the writ is the commencement of the suit: 2. This seems to mean the actual delivery of the writ to the officer: 3. A mistake of the name of the attesting chief justice, is amendable: 4. When this is in a ca. sa. the sheriff cannot object in an action for an escape. See 17 Johns. 63; 18 id. 14, 496; 19 id. 170; 1 Cowen, 47. But 18 Johns 14, 496, it is stated if a writ be made out, and put in the mail, and actually sent off for the officer's, with a fixed intention to have it served, such act and intent, that puts it on its way from the plt. to the officer, is the commencement of the suit; while the plt. keeps it in his hands his intentions are unknown. The delivery of the writ to the coroner's wife is the commencement of the action against the sheriff. By these East, 17 John. cases it appears two things are essential to the commencement of the suit. After the writ is made out: 1. The plt. must be absolutely determined to have it served: 2. It must be put on its way to be served: 3. The plt. put it into the hands of A to deliver it, when he finds a certain event shall happen, as the prisoner passing over the gaol limits. A finds the fact exists Bronson v. 63. and absolutely determines to have it served. This decision is I. CH. 29. it to the officer to have it served. proper § 11. Mass. Act, March 2, 1829, provides that all actions for injuries done to real estate, that abate by the death of the parties, be considered as surviving to the executor or administrator, and prosecuted or defended accordingly, as the deceased might have done, &c. if living-may appear on motion, &c. notified, &c. and nonsuited and defaulted. &c. Judgment de bonis testatoris, assets, &c. § 10 con. Where the executor or administator buys lands, &c. of the heirs, there is a trust, and he must act accordingly, as if an administrator purchase lands from the heirs of his intestate sold under a license, they being of age or not, his purchase is valid if fair, and for a full price. But if he gives an insufficient price, he may be made to account for the deficiency. The same principle applies to guardians and wards. 2 N. H. Rep. 218, 223. Lovell v. Briggs and another, and sundry cases cited. ART. 8. Con. 17 ss. Statute 83 c. 36; Maine Stat. c. 51. §7; 1 Judge, &c. v. $11 con. Nor on the former law, is he held by his general Ma administration bond to account for the real estate, or to sell it or for the proceeds if sold, but is on the statute of 1817 c. 190: 2. Does not refuse to account, till cited by the judge: 3. If Greenl. 139, no special bond be taken on license to sell real estate, the reme- 147, Nelson dy is by removal of the administrator. § 17 con. Held, two judges against one, that an adminis- 3 Rand. 287trator de bonis non, may maintain an action of debt on a judg- 316 Dykes v. ment obtained by the executor: 2. Enough to allege that Ă, executor of B, recovered the judgment, and it will be inferred the debt was originally due to the testator on the plea nul tiel record. Judge Coulter held the judgment recovered by the ex-5 Co. 9-6 Co. ecutor was a valid one, and a bar to any action on the original 45. Cro. Jam. contract. Woodhouses' adm'r. 1 Saund. 92 4. v. Fox. § 20. Debt on administration bond; also on bond as to sell-16 Mass. R. Paine, Judge, ing real estate, by license of court, on the first to charge the 129, 134, administrator for money received, not accounted for, it must appear he received it, before he settled his administration account, or if after, then that he has been cited by the judge to render He is not held to state the conditions of the sale in an advertisement for the sale of land, &c. : 3. He may make immediate payment, a condition of such sale: 4. The replication must state when the money was received; the time was stated under a videlicet and bad. See Videlicet, ch. 192 a. 9. an account. 21. Where the administrator dies and his account is not 2 Greenl. 75-settled, it does not belong to the administrator de bonis non, to 81. present it to the judge, and settle it, but to the representative |