ACTIONS AGAINST EXECUTORS AND

ADMINISTRATORS.

66

as

An action at law cannot be maintained for the distributive share of an intestate's property against the administrator, nor against his executor, although he may have expressly promised to pay. Jones v. Tanner, 7 B. & C. 542. But where the executor has rendered an account to the legatee, in which he debits himself for the amount, retained for the legatee," the latter may recover on an account stated. Hart v. Minors, 2 C. & M. 700. So trover will lie for a specific legacy after assent by the defendant. Williams v. Lee, 3 Atk. 223. And assent to a life interest in a chattel enures as an assent to a further bequest in remainder; but where the executor has such life interest bequeathed to him, his taking possession shall be presumed to be as executor, and not as legatee, if assenting to the legacy would be a devastavit. Richards v. Browne, 3 New Ca. 493.

Evidence on the plea of ne unques executor.] If the defendant intends to deny his being executor or administrator, he must plead it specially, for unless pleaded, his representative character is admitted. The proof of the issue on this plea lies upon the plaintiff, and he may support it by production of the probate or letters of administration, or by secondary evidence of them, after a notice to produce served upon the defendant; in such case, as the presumption of law is that the probate or letters are in the possession of the party who is alone entitled to them, it is not necessary to give any evidence in order to show that they are in the defendant's possession. Some proof of the identity of the defendant with the person named as executor in the probate must be given.

The plea of ne unques executor does not deny the cause of action, but only that the defendant is one of the representatives of the testator. 1 Saund. 207 a. (n).

Upon the plea of ne unques executor it is sufficient to give evidence of such circumstances as will render the defendant liable as executor de son tort. What acts will make a man an executor de son tort is a question of law; but it is for the jury to say whether such acts are proved. Padget v. Priest, 2 T. R. 97. Evidence of slight acts of intermeddling with the property of the deceased will be sufficient. In one case, merely taking a book, and in another a bedstead, was held sufficient. Anon. Noy, 69. So living in the house and carrying on the trade of the deceased; Hooper v. Summersett, Wightw. 16.; suing for, receiving, or releasing the debts due to the estate; Com. Dig. Administrator, (C. 1.); entering on a lease or term for years; Bac. Ab. Executors, B. 3.; pleading any other plea than ne unques executor to an action brought against him as executor, ibid.; will be evidence to prove the party an executor de son tort. So where A., the servant of B., sold goods of C., an intestate, both before and after C.'s death, in pursuance of orders given by C. in his lifetime, and paid the money arising from such sale into the hands of B., it was held that B. was an executor de son tort. Padget

v. Priest, 2 T. R. 97. And where a creditor took an absolute bill of sale of the goods of his debtor, but agreed to leave them in his possession for a limited time, before the expiration of which time the debtor died, and the creditor took and sold the goods, it was held that the bill of sale was fraudulent against other creditors, and that he had thereby rendered himself executor de son tort. Edwards v. Harben, 2 T. R. 587. Merely locking up the goods of the deceased; directing the funeral in a manner suitable to the estate, and out of the effects of the deceased; feeding his cattle; repairing his houses, or providing necessaries for his children, -will not render the party liable as executor de son tort; for they are merely offices of kindness and charity. Williams on Executors, P. 1., B. 3., Ch. 5. Where the widow of a hairdresser continued in the house and shop after his death, without selling anything, and gave a promissory note to a creditor of her husband, and afterwards took out administration; held, that she could not be charged as executrix de son tort. Serle v. Waterworth, 4 M. & W. 9.

In answer to the evidence adduced to prove him executor de son tort, the defendant may shew that he took possession of the intestate's goods under a fair claim of right; Femings v. Jarrat, 1 Esp. 335.; Com. Dig. Administrator, (C. 2.); or that he acted under the authority of the rightful administrator; but it is no defence that he acted as the agent of one named executor, who has never proved the will. Cottle v. Aldrich, 4 M. & S. 175. It is doubted whether there can be an executor de son tort while there is a lawful executor in being. Hall v. Elliot, Peake Ca. 87.; Read's case, 5 Co. 34 a.

In assumpsit against several defendants, as executors, who plead ne unques executors, the plaintiff may have a verdict against the real executors on the counts laying the promises by the testator, and the other defendants must be discharged; Griffiths v. Franklin, M. & M. 146.; and the plaintiff cannot recover on counts upon promises by all the defendants as executors. Ibid.

Evidence on plene administravit; proof of assets.] Where the defendant pleads plene administravit, and the plaintiff replies that the defendant had assets, the issue lies upon the plaintiff, who must prove assets existing at the time of the writ sued out. Mara v. Quin, 6 T. R. 10. If the assets came to the hands of the defendant after the writ sued out, the plaintiff should reply that fact specially, and will not be allowed to give it in evidence under the general replication. Id. 11. Proof that certain articles of furniture were bought by the deceased and seen in his house shortly before his death, is primâ facie evidence of assets. Britton v. Jones, 3 New Ca. 676. In order to prove assets, the plaintiff may give in evidence the inventory exhibited by the defendant in the ecclesiastical court; but a copy of the inventory, signed by the appraisers and not by the executors, is not evidence. B. N. P. 140. Where the defendant has not distinguished the sperate from the desperate debts in the inventory, it has been held that the whole shall, prima facie, be taken to be assets, so as to throw the onus of proving some of them desperate upon the defendant. B. N. P. 140; Smith v. Davis, Selw. N. P. 712. But in another case Lord Ellenborough ruled, that it was necessary to prove, presumptively at least, that these debts have been paid. Giles v. Dyson, 1 Stark. 32. It is not every inventory that will be proof of assets: thus the inventory exhibited by an executor before

probate, which he makes out without full examination of the property, and in which he is bound to include all the effects of the testator, is not even prima facie evidence of assets. Stearn v. Mills, 4 B. & Ad. 657. Where, to prove assets, an account rendered by the defendants to the plaintiff was given in evidence, in which they stated that a sum of money had been awarded as due to the testator's estate, Lord Ellenborough held that this was not sufficient without shewing that it had been received by the executors. Williams v. Innes, 1 Camp. 364. If an executor submits to arbitration, such submission is not an admission of assets; the arbitrators not directing the executor to pay the money. Pearson v. Henry, 5 T. R. 6. But a submission to arbitration and an agreement to pay what shall be awarded, with an award to pay accordingly, is an admission of assets to the amount of the sum so awarded. Barry v. Rush, 1 T. R. 691.; Worthington v. Barlow, 7 T. R., 453. Proof of an admission by an executor that the debt was just, and that it should be paid as soon as he could, is not evidence to charge him with assets. Hindsley v. Russell, 12 East, 232. So the payment of interest upon a bond of the testator is not an admission of assets. Cleverley v. Brett, cited 5 T. R. 8. But a probate stamp has been held to be primâ facie evidence that the executor has received assets to the amount covered by the stamp. Foster v. Blakelock, 5 B. & C. 328. This case was, however, doubted in Stearn v. Mills, 4 B. & Ad. 657. supra. In Mann v. Lang, 3 A. & E. 699., the court were of opinion such stamp was admissible evidence for the plaintiff; but were not agreed whether it could be received as evidence of the amount of assets. An administrator bonâ fide compounding with a debtor to the estate is not liable to the full amount of the debt compounded, as he is where he releases it without consideration. Pennington v. Healey, 1 C. & M. 402.

Where leasehold premises are the assets, the value as between the lessor and the lessee's executor is to be taken exclusive of deterioration for want of repair, or other breach of covenant committed in the executor's time; and the insolvency of an under-tenant, let in by the testator, cannot be taken into consideration, at least where there is a clause of re-entry in the underlease for non-payment of rent. Hornidge v. Wilson, 11 A. & E. 645. In the above case the action was for rent against the executor, as assignee of the testator.

Though the plea of plene administravit in an action of assumpsit against an executor admits a cause of action, it does not admit the amount, which must be proved by the plaintiff; but in an action of debt in which a specific sum is demanded, the specific debt is admitted, and need not be proved. Shelley's case, 1 Salk. 296; B. N. P. 140.

On a plea by several executors that they have fully administered, if some appear to have assets in their hands, and the others not, the latter are entitled to a verdict; Parsons v. Hancock, M. & M. 330; although they join in the plea. See 2 Williams on Executors, 1219.

Evidence on plene administravit in answer to proof of assets — payment of debts.] When the plaintiff has given evidence of assets, the defendant, in answer to such evidence, may prove that those assets have been exhausted by payment of other debts of the deceased of as high, or of higher, degree than the debt of the plaintiff, provided such payments were made before the writ purchased. When the defendant pleads "no

assets," without the averment of plene administravit, yet he must shew the payment of assets by a due course of administration. Reeves v. Ward, 2 New Ca. 235.

The course of distribution is as follows: 1. All funeral expenses, and the charges of proving the will, or of taking out letters of administration; and the defendant may shew that he has retained money in his hands to pay for the expenses of administration to which he has made himself liable, without proving that he has paid them. Gillies v. Smither, 2 Stark, 528. 2. Debts due to the crown by record or specialty. 3. Certain debts created by particular statutes. 4. Debts of record, if docketed according to statute 4 & 5 W. & M. c. 20.; otherwise they only rank as simple contract debts. Hickey v. Hayter, 6 T. R. 384. 5. Debts due by specialty, and rent. 6. Debts due by simple contract, first to the king, and secondly to a subject. Com. Dig. Administration, (C. 2.)

The expenses of the funeral, if reasonable and suited to the rank and circumstances of the deceased, will be allowed out of the assets; if unreasonable, the executor must take his chance of the estate turning out insolvent. Edwards v. Edwards, 2 C. & M. 612. And he will be liable to reasonable expenses, even although he did not actually order the funeral, provided the credit was not given to another; and if he has authorised unreasonable expenses, he is liable personally, and not merely as executor; Brice v. Wilson, 8 A. & E. 349. (n); and an administrator is liable as such even where he has sanctioned them before he took out administration. Lucy v. Walrond, 3 New Ca. 841.

If the defendant has paid debts to the amount after the suing out, but before notice of, the plaintiff's writ or debt, he must plead such defence specially, and cannot give it in evidence under plene administravit, under which no payments made after the action commenced can be shewn. Dyer, 32. (a). (margin); Com. Dig. Administration. (C. 2.) An executor de son tort maypay a specialty debt after action brought by a simple contract creditor, and may plead the payment of that debt in bar of the action. Oxenham v. Clapp, 2 B. & Ad. 309.

Where the action is brought on a bond of the deceased, and the defendant pleads plene administravit and relies upon the payment of other bonds of the deceased, the execution of such bonds must be proved in the usual manner, even though the bonds have been destroyed. Gillies v. Smither, 2 Stark. 530.; see Poole v. Warren, 8 A. & E. 582., antè, p. 95. Where, however, the defendant, being sued in assumpsit on a simple contract, pleads plene administravit and relies upon the payment of bonds of the deceased, it will be sufficient, it is said, to prove the payment; B. N. P. 143.; for, though not a bond, it is yet a good administration; see antè, p. 94.

Where defendant shews payment of debts, &c., plaintiff may show on this issue that the payment was made out of another fund applicable to such debts, and not out of the assets. Marston v. Downes, 1 A. & E. 31. In debt on bond to which defendant pleaded plene administravit before notice, it was held that if the defendant had invested the residue in the funds in his own name, although for the benefit of the legatees to whom he had paid the dividends for many years, he was still liable as for assets in hand; and it was questioned whether payment of legacies before notice could be proved under the plea of plene administravit. Smith v. Day, 2 M. & W. 684.

Though a creditor may so mislead an executor as to preclude himself from objecting to the course of administration, yet a letter written to the latter, intimating an intention to hold him liable personally and not as executor, is insufficient for this purpose. Richards v. Browne, 3 New Ca. 493.

Evidence on plene administravit — retainer.] The defendant may either plead a retainer of a debt due to him (which must be a debt of an equal or higher degree than the debt for which the action is brought, in order to entitle the defendant to retain it), or may give it in evidence on the plea of plene administravit. 1 Saund. 333. (n). So the defendant may retain for payments which he has made out of his own monies before the issuing of the writ in discharge of debts of the deceased of equal or higher degree than the plaintiff's. Co. Litt. 283 a.; B. N. P. 141.

An executor de son tort cannot retain for his own debt, though of higher degree, and though the rightful executor after action brought has consented to the retainer. Curtis v. Vernon, 3 T. R. 587. S. C. in Error, 2 H. Bl. 18. In answer to such evidence of retainer, the plaintiff may shew who are the rightful executors. B. N. P. 143. Where the defendant pleads a retainer, and also a judgment recovered, which together cover the assets, it is sufficient for the plaintiff to falsify either claim. Campion v. Bentley, 1 Esp. 344.; see 1 Freem. 467. 537. One of two executors may retain for his own debt out of a balance due from both to the estate. Kent v. Pickering, 2 Keene, 1.

Evidence on a plea of outstanding debts-replication per fraudem.] The defendant cannot, under the plea of plene administravit, give evidence of the existence of outstanding debts of a higher nature. B. N. P. 141. Such defence must be pleaded; and if the defendant pleads a judgment obtained against him for 100l. and that he has not goods except to the value of 5, and the plaintiff proves that he has 1004, yet he gains nothing; for the substance of the issue is that the defendant has not above what will satisfy the judgment. Moon v. Andrewes, Hob. 133.; 1 Saund. 333. (n).

Where the defendant pleads an outstanding judgment, the plaintiff may reply that it was obtained or kept on foot by fraud, which the defendant is bound to traverse in his rejoinder; and on this issue the plaintiff may either give in evidence that the debt was not a just one, or that less is due than the sum for which judgment has been given. 2 Saund. 50. (n). In answer to the latter evidence, which is primâ facie proof of fraud, the defendant may shew that the judgment was entered for more than was due by mistake. Pease v. Naylor, 5 T. R. 80. If a judgment is pleaded and per fraudem replied, upon which issue is taken, and it appears in evidence that the creditor was willing to take less than is recovered, it is proof of fraud; but if it be shewn that the administrator had not assets to pay that sum, it is no fraud. Per Cur. Parker v. Atfeild, 1 Salk. 312. If the defendant plead several judgments recovered against himself, to which the plaintiff replies fraud, it will entitle the plaintiff to a general judgment if he can avoid any one of them; for a judgment recovered against an executor being an admission of assets, if any one of the judgments be falsified, the defendant admits by his plea that he has more assets than will satisfy the other judgments by as