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ministrator, whether rightful or of his own wrong, who shall waste or convert to his own use the estate of his testator or intestate, liable and chargeable in the same manner as their testator or intestate would have been if they had been living. Now to whom would their testator or intestate have been liable if living? To the creditors, or the legatees, or distributors, if you please, but certainly not to the administrator de bonis non, because there was no such person in being: 1 Saund. 219, d note.

From the view which has been taken of executors and administrators, their rights and responsibilities at this time were made substantially the same, a matter that has been doubted by some. The statute last referred to places them upon the same footing, and makes them alike responsible. Every executor or administrator who has sold and converted into money the goods of his testator or intestate, or collected the debts owing to them respectively, and refuses or neglects to pay the debts of the deceased, is guilty of a devastavit. This is clearly proved by the case of almost daily occurrence, where such an executor or administrator is sued by a creditor, and judgment had against him, upon which a fieri facias is issued directed to the sheriff, commanding him to levy the amount out of the goods of the testator or intestate, in the hands of the executor or administrator. Now, as the executor or administrator has converted, that is, has sold all the goods of the deceased which came to his hands, it is impossible for the sheriff to find any whereon to levy; and if the defendant in execution refuses or neglects to pay the amount of it, he is considered guilty of a devastavit, and the sheriff will be justified in making a return to that effect upon the fieri facias: See Serjeant Williams' Notes, already referred to, 1 Saund. 219, b. 6. All this goes to establish that the collection of the testator's or intestate's debts, or a sale of his goods by the executor or administrator, is such an administration of them as to preclude the administrator de bonis non from claiming or exercising any power or authority over them, or the proceeds of them. They are not embraced within his commission, which is for the administration of the goods and chattels, rights and credits, which were of the testator or the intestate at the time of his death, and remained unadministered. For unless they remain in specie, it can not be said that they were of the goods and chattels, rights and credits, which belonged to the deceased at the time of his death. Again, if the collection of debts owing to the deceased, or the sale of his

goods by the executor or administrator, had not been such an administration as to put these things beyond the reach and control of the administrator de bonis non, there was but little, if any occasion, for the statutes of 30 Car. II., and 4 and 5 W. & M., already mentioned, because the administrator de bonis non could have maintained his action, as it certainly would have been his duty to have done; so if he had had the right and the authority for the recovery of all the moneys received, as well in payment of debts due to the deceased, as upon sales made of his goods by the executor or administrator against the personal representatives of such executor or administrator, and when recovered have paid the creditors, legatees, and distributees, the enactment of that statute would have been useless.

The provisions, however, of these statutes prove conclusively to my mind that such right and authority were never supposed to have existed on the part of the administrator de bonis non. Beside, before the statute of 22 and 23 Car. II., when the administrator became absolute owner of the residue of the personal estate, after paying the debts of the deceased, it would have been repugnant to the rights of the deceased administrator, as well as absurd, to have given the administrator de bonis non the right to have called the personal representatives of the deceased administrator to an account of all the moneys received in payment of debts owing to the intestate, as also those received upon sales made of the personal property, and to have compelled them to pay all over to him. It was sufficient for any purpose that the administrator de bonis non had to accomplish, that he obtained possession of everything belonging to the original intestate, which remained in specie, not converted or changed. The more he found in this state the better for him, and a loss, as it were, to the estate of the first administrator, whose fault it was that he had not secured the whole estate by a change or conversion of it. Had it been that the administrator could have demanded the proceeds of debts collected, as also of sales made by the first executor or administrator, no executor or administrator could have had the benefit of what was given to him by the testator or the law, and the course of administration by granting commissions de bonis non administratis would have been interminable. For whatever of the goods of the testator or intestate remained unadministered at the death of the executor or administrator could not be passed or transferred by his will: 11 Vin. Abr. 109, pl. 3, 421, pl. 6, 267, pl. 6. These

goods ceased to have an owner until the ordinary gave them one by appointing an administrator de bonis non, in case of an administrator's dying or of an executor dying without appointing his executor, and in case of his having appointed one, then by granting probate of the will to his executor, the executor of the first executor became in effect the executor of the first testator: 11 Vin. Abr. 421, pl. 6, 267, pl. 6. So that the only means which the first administrator or executor had of securing to himself the benefit given him by the law or the will, in the testator's or intestate's estate, was to dispose of it or to convert it, which he had the power of doing, and thus make it his own, so that he did not injure creditors, and if he did, they had their remedy without the intervention of an administrator de bonis non, under the provisions of the statutes of 30 Car. II., and 4 and 5 W. & M.

That it ever has been considered to be the law by courts and jurists, that the collection of debts due to the testator or intestate, or disposition, change, or alteration of the goods made by the executor or administrator, would protect them from the claim of the administrator de bonis non, as unadministered goods, will abundantly appear from adjudged cases and other authorities, some of which I will refer to.

Lord Chancellor King, in Attorney-general v. Hooker, 2 P. Wms. 340, says: "All the personal estate, the property whereof is not altered, shall go to the administrator de bonis non.” In Tingrey v. Brown, 1 Bos. & Pul. 311, Chief Justice Eyre says: "Everything is unadministered which has not been reduced into the actual possession of the executor and converted by him." In Wankford v. Wankford, 1 Salk. 306, by Holt, Chief Justice: "If the goods of the testator remain in specie, they shall go to his administrator de bonis non, because in that case it is notorious which were the goods of the testator, and they are distinguishable; and there is the same reason, where money is kept by itself, and the husband permits it to be so; but if the husband seizes it, it will be his, and will be a devastavit." He is here speaking of an executrix of the obligee, who had intermarried with the obligor, and received from him the money due upon the obligation. So upon the same principle, if the executrix without marrying the obligor, had received the money from him, and put it in with her own, or used it in any way, its distinguishing mark would have been gone; it would have been a conversion, a devastavit, and the administrator de bonis non would, upon the principle here laid down, have no claim to it.

The same principle will be found in 3 Bac. Abr., tit. Executors and Administrators, 19, 20, where it is said, that "an administrator de bonis non is entitled to all the goods and persona estate, such as terms for years, household goods, etc., which remained in specie and were not administered by the first executor or administrator, as also to all debts due and owing to the testator or intestate."

From this it would appear that if the goods are changed or altered, and remain no longer in specie, or have been disposed. of, the administrator de bonis non can not claim them; and so of the debts, unless they be such as grow out of contracts to which the testator or intestate was a party, for otherwise they can not be said to be debts due and owing to the testator or intestate, which is fully established by the decision of the lord chancellor in Barker v. Talcot and Shaw, 1 Vern. 473, where the administrator of a lessor settled with the tenant or lessee for arrearages of rent due to the intestate at the time of his death, received part of the amount in money, and took the tenant's note, payable to himself, for the balance, and died, the note remaining unpaid; it was held, upon a full hearing, that the note given to the administrator was quasi payment, and a good conversion, and that the same ought to go to his administrator, and not to the administrator de bonis non; this, too, it may be observed, was the decision of a court of equity. In Jenkins v. Plume, 1 Salk. 207, it is said by the court that if a third person receive a debt due and owing to the testator, with or without the consent of the executor, yet the executor may sue such person for money had and received to his, the executor's use; and in case it was received without his consent, it becomes assets the moment he obtains judgment for the amount without execution, although if he had sued the original debtor, that is, the person who owed the money to the testator, it would not have been assets till levied by execution or received. If the money had been received by such third person with the consent of the executor, it would in effect have been a payment to the executor himself, and assets in his hands immediately, and a discharge of the debtor; but if received without his consent, it would only be made a payment or discharge of the debt by his subsequent conduct. His bringing suit for the money against the receiver was an assertion of his right to it, and a confirmation of the payment, which he could not retract after obtaining judgment for it. The original debtor was thereby discharged, the executor himself became responsible for the money. It was

no longer money due or owing upon a contract made to which the testator was a party, but money for which the administrator recovered a judgment upon a promise, as appeared by the record, made to himself. In short, the administrator, by his affirming and ratifying the payment of the debt to the defendant, had changed or converted it; administered it, as the court must have understood it, for they say, in case of the executor's dying intestate before execution of the judgment and receipt of the amount of it, that his administrator, and not the administrator de bonis non, shall have a scire facias and execution upon it. So where the plaintiff, as executor, and the defendant submitted by bond all controversies relating to the testator's estate to arbitration, and the arbitrator awarded that the plaintiff should deliver certain goods, of which the testator died possessed, to the defendant, and that the defendant should pay to the plaintiff three hundred and twenty pounds, in an action upon the bond, for having failed to perform the award, the defendant pleaded that the money awarded to be paid by him was attached by writ of foreign attachment according to the custom of London, and adjudged by the court that although it were assets, yet it was not attachable, for then the administrator de bonis non might sue for it: Horsam v. Turget, 1 Vent. 111; S. C., by the name of Horsey v. Turges, 1 Lev. 306. And where a promissory note was made by a debtor of the testator to an executor (ut executori), such note shall go to the administrator of the executor, and not to the administrator de bonis non: Betts v. Mitchell, 10 Mod. 315.

So in Butler v. Bernard, 1 Ch. Cas. 224, Lord Chancellor Finch held that where an administrator had made a mortgage of the intestate's term under a lease for years, and made A. his executor, and died, his executor, and not the administrator de bonis non of the intestate, was entitled to redeem, because the mortgaging of the term was an alienation and conversion of it. This decision was made in a court of equity where the administrator de bonis non was a party, praying the court to have the benefit of the redemption, which goes to show that the rights and claims of an administrator de bonis non are governed and regulated by the same principles, both in law and equity. An administrator, as such, being possessed of a term of his intestate for a hundred years, made a lease for five years, rendering rent to himself, his executors, and assigns, and after appointing his executor, died; his executor, and not the administrator de bonis non, was adjudged to be entitled to receive the rent which

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