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Act of March 3, 1819—January 1, 1820. R. C. ch. 104.

or incapacity of the executor, or administrator, it is improper any longer to permit the estate of his testator or intestate to remain under his control, it shall be lawful for such court, the executor or administrator having been previously summoned to appear before them, by process served upon him, if he can be found within the commonwealth, or, if he cannot be found, published in such manner as the court shall direct, either to require of such exécutor or administrator other good security for the performance of his duties, or to reyoke or annul his power as executor or administrator; and, if necessary, to appoint an administrator de bonis non in the same manner as if such executor or administrator were dead, (2) or to commit the estate to the hands of the sheriff, in the same manner as if there had been no executor or administrator: Provided however, That no revocation of the power and authority of an executor or administrator, by virtue of this act, shall operate, either to invalidate any previous act of such executor or administrator, or to discontinue or abate any suit then depending, by or against such executor or administrator; but any suit so depending, where the executor or administrator be plaintiff, instead of being conducted in the name of such executor or administrator, shall thereafter be conducted in the name of the person having the administration, care or management of the estate; whose name shall be substituted in the place of the original plaintiff, executor or administrator, by the order of the court, before which such suit or suits may be depending; which order such court is directed to make on the production of the order committing such administration, care or management of the estate. And where such executor or administrator shall be defendant in any depending suit, it shall be in the discretion of the plaintiff or plaintiffs, to continue such suit against such executor or administrator, to final judgment or decree, or to have the person or persons, to.whom the administration, care or management of the estate, may be committed, substituted as defendant in such suit, in the manner before prescribed for making such person or persons plaintiff or plaintiffs; and such suit shall thereafter progress to final judgment or decree, in like manner as if it had originally been instituted against such person or persons so substituted. Ibid.(6) [Whenever it shall

(2) See the remarks of Green, J. in Wernick v. M'Murdo, 5 Rand. 87.

(6) See "an act to authorize administrators de bonis non to receive assets from the ex'r or adm'r of prior ex'rs or adm'rs." April 6th, 1839, ch. 70, p. 44, by which it is enacted:

1. That whenever any executor or administrator shall have been removed from his office, or shall have departed this life, with out having paid the debts due from his testator or intestate, it shall and may be lawful for the executor or administrator so removed, or the executor or administrator of an executor or administrator to pay over and transfer to any surviving executor, or the administrator de bonis non, or subsequent executor of the first decedent, all the assets and unadministered estate, including bonds taken for the sales thereof, which may be in the possession of said executor or administrator at the time of his removal or death, and all the assets, bonds and estate thus paid over and transferred, shall be assets in the hands of the surviving or subsequent executor or administrator de bonis non, subject to debts, legacies and distribution in all respects as before said removal or death.

And the said surviving or subsequent executor or administrator de bonis non and his securities shall be responsible for the faithful administration of the assets, bonds and estate so transferred and paid: Provided, That nothing herein contained shall be so construed as to require the payment or transfer of assets which have been converted by any executor or administrator without the consent of the executor or administrator of such executor or administrator.

2. That no commission shall be allowed to any executor or administrator on any assets by him transferred and paid over according to the first section of this act, in any case where he may have procured or assented to his own removal, or who shall have been removed for failing to give additional or counter security, if it were in his power to give the same, but the same shall be alTowed to his successor.

3. That this act shall not in any manner affect the lien of priority of judgments and decrees and other debts as now by law established.

An administrator de bonis non can maintain no suit for the recovery of assets converted by his predecessor in the administra

Act of March 3, 1819-January 1, 1820. R. C. ch. 104.

appear to the court, from the report of a commissioner, or from any other circumstance, that the interest of the legatees, or distributees of any testate, or intestate's estate, is endangered by failure on the part of the representative of such estate, and their securities, such court shall cause a summons to issue, requiring the representative, or representatives, to appear at the next court, and shew cause why additional security shall not be had; and if, on examination, it shall appear to the satisfaction of the court, that additional security ought to be required, the same shall be demanded, by an additional bond to be entered into, at the next succeding court thereafter; and, in case of failure on the part of any executor, or executrix, administrator, or administratrix, curator, or committee, to appear and give the additional security required, the court shall, at their discretion, either place the estate in the hands of some other person, or persons, who shall give satisfactory security for the faithful administration of the same, or commit it to the hands of the sheriff or serjeant of the county or corporation where the case may occur. Feb. 19, 1823, c. 23, § 3.]*

17. § 42. When the estate of any testator or intestate shall have been committed to any security of the executor or administrator, or any other curator, in manner aforesaid,(a) such security or other curator, during the continuance of his authority, shall have power to demand and receive the debts and other personal property, due, or belonging to the estate, to pay the debts due from it, and may sue and be sued, in the same manner as an executor or administrator. Ibid.

18. § 43. All certificates of probat or administration, attested by the clerk, shall enable the executor or administrator to act, and may be produced, or given in evidence, in any court within this commonwealth, and be as effectual as any probat or letters of administration made out in due form:(1) Nevertion. Cheatham, adm'r v. Friend's adm'r, 9 Leigh, 580.

If such suit be instituted by the administrator de bonis non against the representatives of his predecessor, a party who is sole legatee of the original decedent, and has also qualified as the successor administrator de bonis non, cannot revive and prosecute the suit, either in the character of legatee, or in that of personal representative. Ibid. * The latter part of this section has been amended. See act of Feb'y 16, 1825, § 9, Ses. Acts 1824-5, p. 13, Sup. R. C..p. 218. The amended section provides, "that whenever it shall appear to the court, from the report of the commissioner or commissioners appointed to settle the accounts that the interest of the estate is endangered either by the misconduct, incapacity or removal of the executor or executrix, administrator or administratrix, curator or committee, or by the failure in circumstances, or removal of the securities, or any of them, such court shall, in the same manner as if complaint had been made by a creditor, legatee, distributee, or other person interested, proceed in the manner prescribed by the forty-first section of the act, passed on the third day of March, eighteen hundred and nineteen, entitled an act reducing into one the several acts concerning wills, the distribution of intestates' estates, and the duty of executors and adminisirators,' either to require

of such representative, other good security for the performance of his duties, or to revoke or annul his power over the estate, and if necessary, to appoint an administrator de bonis non, or to commit the estate to the hands of the sheriff or serjeant in the same manner as if there had been no executor or administrator. Such revocation shall, in all respects, have the same effect as if made under the aforesaid forty-first section of the act aforesaid."

(a) The words of the original act of Feb. 7, 1814, c. 13, § 7, are "by virtue of this act." It would seem, therefore, that the provisions of this section do not apply to 24 sec. of this act. Ante, No. 5. And so held by court of appeals (April 1837.) Tucker, P. delivered op. of ct.: "the provisions of this sec. (42d,) apply alone to the curators mentioned in the preceding section, who being substituted for a defaulting and removed ex'r or adm'r, are very properly invested with all their powers and capacities." Wynn's ex'r v. Wynn's adm'rs, 8 Leigh, 264, 269.

(1) Dickinson, adm'r v. M'Craw, 4 Rand. 158. The plf. made profert of his letters of administration. The deft. craved oyer of the letters-plf. produced a certificate, attested by the clerk, which stated the qualification of plf. by taking oath and giving bond &c.: Held, that the certificate was as effectual as letters of adm'n, made out in due

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Act of March 3, 1819-January 1, 1820. R. C. ch. 104.

theless, the clerks of the courts shall, when required by an executor or administrator, make out such probat or letters in due form, in the name of the first justice of the court; which probat or letters shall be signed by such justice, and sealed with the superior court of law, county or corporation court seal, if such court hath a seal, if the will hath been proved in a district court, or be proved in a superior court of law, county or corporation court; or, with the seal of the commonwealth, if proved in the general court. 1785, c. 61, 12 Stat. Larg. 148; 1792, c. 92, R. C.

19. § 44. Every court granting a certificate for [the probat of any will, whereby the executor or executrix, administrator or administratrix with the will annexed, may be authorized to sell any real estate within this commonwealth, or to receive the rents and profits of any such real estate,] a probat or administration, shall nominate three or more appraisers in every county or corporation where any of the personal estate [or of the said real estate] of the decedent shall be; who being sworn(7) before a justice of the peace for that purpose, shall, truly and justly, to the best of their judgment, view and appraise all the [said] personal [and real] estate to them produced [or shewn,] and shall return such appraisement, under their hands, to the court ordering the same; which appraisement, if signed by the executor or administrator,(p) may be considered as an inventory of such part of the estate as had heretofore come to his hands. Nov. 1711, c. 2, 4 Stat. Larg. 21; May 1730, c. 8, lb. 281; Oct. 1748, c. 5, 5 Stat. Larg. 462; 1785, c. 61, 12 Stat. Larg. 149; 1792, c. 92, R. C.

20. § 46. Each appraiser shall be entitled to one dollar per day for his attendance, to be paid by the executor or administrator, and charged to the esFrom Ibid. Am. at Rev. 1819.

tate.

21. § 45. Inventories and appraisements may be given in evidence,(q) in any suit by or against the executor or administrator, but shall not be conclusive for or against him,(qq) if other testimony be given, that the estate was

form, and was a compliance with the prayer of oyer. And pr. Green, J. in Wernick v. M'Murdo, 5 Rand. 91. so An administration granted in another state, will not authorize the administrator to bring suit in this state. Dickinson, adm'r v. M'Craw, 4 Rand. 158. This is the genel2ral doctrine of the common law. See Story on the Conflict of Laws, 422, and authorities cited, note (1). Yet if a debtor here chooses voluntarily to pay him a debt, which he may lawfully receive under that administration, the debtor will be discharged. Ib. p. 431; and Doolittle v. Lewis, 7 Johns. Ch. R. 49, and other cases cited, p. 432.

Quare. Can a foreign ex'r or adm'r, being in Virginia, be sued in Virginia for a debt of testator or intestate? Judge Tucker thinks the action may well lie. See Pugh's ex'r v. Jones, 6 Leigh, 310, and authorities eited. And vide Story on the Conflict of Laws, ch. 13, § 513, 514, 515, p. 422, 432; and his remarks on Campbell v. Tousey, 7 Cowen's R. 64; and Story's Equ. Plead. ch. 4, § 179, the negative is positively laid down, p. 167. (7) Appraiser's Oath.

City of R. sc.

A. B., C. D, and E. F. who are nominated and appointed by the hust.

court of the city of Richmond, appraisers of the personal [and real] estate of X. Y. deceased, late of said city, situate and being in said city, this day personally appeared before me, U. V., a justice of the peace for said city, and were duly sworn by me, truly and justly to the best of their judgment, to view and appraise all the personal [and real] estate of the said X. Y. which shall be produced or shewn to them for appraisement. Given under, &c.

(p) 'Tis the signing by the executors or administrators, that constitutes an appraisement an inventory. Carr's ex'r v. Anderson, 2 H. & M. 361. An appraisement is, however, admissible as prima facie evidence, of the value of the estate. Rogers's adm'x v. Chandler's adm'r, 3 Munf. 65. An inventory not signed by an administrator, is no inventory as to him, and so no ground on which to charge him. Parks's adm'r &c. v. Rucker, 5 Leigh, 149, 152; and Parsons v. Hancock et al. 1 Moo. & Malkin. 330. (7) Must they be first admitted to record under the sanction of the court? See 2 H. & M. 364; 4 H. & M. 255. (qq) See Willoughby adm'rs v. M'Cluer et al. 2 Wend. 608.

Act of March 3, 1819-January 1, 1820. R. C. ch. 104.

really worth or was bona fide sold for more or less than the appraisement. Ibid.

22. § 47. Executors and administrators, whether it be necessary for the payment of debts or not, shall, as soon as convenient after they are qualified,(r) sell at public sale, all such goods of their testator or intestate, (b) specific legacies excepted, as are liable to perish,(s) be consumed, or rendered worse by keeping, giving such credit as they shall judge best, and the circumstances of the estate will admit of, taking bond and good security of the purchasers; and shall account for such goods according to the sales. If more be sold than will pay the debts and expenses, the executor or administrator may assign the bonds for the surplus to those entitled to the estate, and be discharged as to so much;(t) and if, after such assignment, the obligor become insolvent, so as the money be lost, without the fault or neglect of the assignee, then such loss shall be made good to the assignee out of the decedent's estate. Ibid.

23. § 48. If such perishable goods be not sufficient for paying the debts and expenses, the executor or administrator shall proceed, in the next place, to sell the other personal estate, until the debts and expenses be all paid, and having regard to the privilege of specific legacies.(u) Ibid.

(r) See ante, note (ƒ).

(b) The ex'r or adm'r, when he sells property as belonging to his testator or intestate, acts at his peril. If he sells the property of another, he must answer to the owner for it, however he may have thought himself bound by law to sell, and however fairly he may have applied the proceeds to the debts of the decedent, without notice of the right or claim of the owner. Newsum v. Newsum, 1 Leigh, 86.

(s) In determining which of the goods are liable to perish, be consumed, or rendered worse by keeping, some latitude of discretion should be allowed; where the conduct of the executor or administrator appears to have proceeded from an honest motive, it ought to receive the sanction of a court of equity. M'Call v. Peachy's adm'r, 3 Munf. 288.

(t) This rule adopted, where the executor was directed by the will, to sell both real and personal estate, and after payment of debts, to distribute the balance; the bonds being well secured, and due from responsible persons at the time of assignment. Guerrant v. Johnson et al. 4 Munf. 360, 364. (u) 'Tis a violation of an executor's duty, to sell specific legacies for the payment of debts, so long as he has other assets sufficient to discharge them; of this fact, the law constitutes the executor the judge: if, therefore, he sells specific legacies to a bona fide purchaser for a valuable consideration, the fact, as it respects the purchaser, will not be permitted to be controverted by the legatee. Sale v. Roy, 2 H. & M. 69; Ewer v. Corbet, 2 P. Wms. 148. See the cases reviewed in M'Leod v. Drummond, 17 Ves. jun. [153-172.]

An executor who sells or pledges the assets of his testator's estate for his own use, when he is not in advance to the estate, commits a fraud; and the purchaser or

mortgagee, with notice of such improper
conduct at the time of the transaction, will
be decreed to make restitution. But if the
purchaser or mortgagee has no notice of
the fraud at the time of the purchase, &c.
he will be protected as a purchaser without
notice. Dodson et al. v. Simpson et al. 2
Rand. 294; and see Downes v. Power, 2
Ball & Beatty, 491; Sutherland et al. v.
Brush, 7 Johns. Ch. R. 17; Field v. Schief-
felin, Ib. 155; Keane et al. v. Robarts et al.
4 Madd. R. 332, 350-359. "Every person
who deals with an executor, knowing his
character of executor, has, necessarily, im-
plied, if he has not express, notice of the
will: but all dispositions made by a will of
personal property, are by law subject to a
prior charge for the payment of debts; and,
as a purchaser of real estate devised in aid
for the payment of debts is not bound to in-
quire into the fact, whether the sale is made
necessary by the existence of debts, because
he has no adequate means to prevent such
an inquiry; so he who deals for personal as-
sets is for the same reason absolved from all
inquiry with respect to debts; he has a right
to assume that the executor sells in the ne-
cessary course of his administration; and it-
is upon this principle, altogether indifferent
what dispositions may be made in the will
with respect to the personal property for
which he deals; for whether it be specifi-
cally given, or be a part of the residuary
estate, it is equally charged by law with
the payment of debts; if it were otherwise,
the powers of an executor would be wholly
inadequate to the administration of the tes-
tator's estate." 66
Every person who ac-
quires personal assets by a breach of trust,
or devastavit in the executor, is responsible
to those who are entitled under the will, if
he is a party to the breach of trust. Gene-
rally speaking, he does not become a party
to the breach of trust by buying or receiv

Act of March 3, 1819-January 1, 1820. R. C. ch. 104.

24. § 49. Provided, That executors and administrators shall not sell the slaves of their testators or intestates, unless the other part of the personal estate (regard being had to the privilege of specific legacies,) shall not be sufficient for paying the debts and expenses; (v) and, in that case, such part only of the slaves shall be sold, as shall be sufficient to satisfy the debts and expenses, and the residue of the slaves shall be reserved in kind for the legatees

ing, as a pledge for money advanced to the executor at the time, any part of the personal assets, whether specifically given by the will or otherwise; because this sale or pledge is held to be prima facie consistent with the duty of an executor. Generally speaking, he does become a party to the breach of trust, by buying or receiving in pledge any part of the personal assets, not for money advanced at the time, but in satisfaction of his private debt; because this sale or pledge is prima facie inconsistent with the duty of an executor. I preface both these propositions with the term "generally speaking," because they both seem to admit of exceptions. Thus, a sale or pledge for the private debt of an executor, has been supported under special circumstances in Ld. Hardwicke's two cases of Nugent v. Giffard, 1 Atk. 463-4, 2 Ves. 269; and Mead v. Orrery, 3 Atk. 237, though not entirely to the satisfaction of every succeeding judge, &c." "If a party, dealing with an executor for the personal assets, pays his money to the executor, so that it may be applied to the purposes of the will, he is not responsible for the executor's misapplication of it; but if, in dealing with the executor, he does in truth pay his money for the private purposes of the executor, he is equally a party to the breach of trust, whether he applies his money to the private debt of the executor or to the private trade of the executor." Pr. Sir Jno. Leach, Vice Chancellor; and see Marshall, C. J. in Garnett, ex'r v. Macon et al. p. 44, 45 Tate's ed.

An executor cannot apply the assets of his testator to his own purposes, unless he is in advance to the estate, to the same amount; and a purchaser knowing the trust purchases at his peril. This rule applies as well to a purchaser who advances his money at the time of the purchase, as to one who takes the assets as a security for a preceding debt. Where a trustee sells real estate, entrusted to him by the will of a testator, and takes a deed of trust for the purchase money, and afterwards makes a contract for his own benefit, and assigns the instalments due for the land, in execution of his contract, the assignment containing a reference to the deed of trust which refers to the original deed, which refers to the will creating the trust, the assignee of the instalments will be considered as having notice of the trust, and that the instalments were derived from the sale of the trust pro

perty, and consequently the cestui que trust will be entitled to the money. Graff et al. v. Castleman et al. 5 Rand. 195; Broadus et al. v. Rosson et al. 3 Leigh, 12; Wilson v. Moore, 1 Mylne & Keene, 126, 337; and there is no primary liability in respect of breaches of trust; all parties to a breach of trust being equally liable; and it is no objection to suits brought by parties seeking relief against a breach of trust, that one of the defendants against whom no relief is prayed, may have been a party to such breach of trust.

See Handley v. Snodgrass, 9 Leigh, 484. (r) The above rule applies only to third persons, "who are not bound to take an account of the testator's debts:" therefore, if the executor himself put up the specific legacies or slaves, and buy them, he must stand according to the very truth of the case, and if the state of his testator's assets did not justify the sale, it will be vacated at the instance of any person interested. Anderson et al. v. For et al. 2 H. & M. 245. See Todd et ux. v. Moore's adm'r, 1 Leigh, 457.

Sales by executors and administrators, should be so conducted, as to render the avails as large as practicable; 'tis their duty to sell by public auction, and when the circumstances of the estate will admit, at a reasonable credit. Hudson et al. v. Hudson's adm'r, 5 Munf. 180, 183.

If they sell by private contract, for cash, when the estate will justify a credit, they will be charged in their accounts, such sum as a public sale, on credit, would have produced; and if the estate would not justify a credit, then, what a public cash sale would have produced. Hudson et al. v. Hudson's adm'r, 5 Munf. 180, 183.

A bond taken by an administrator to himself, for proceeds of his sales of his intestate's estate, though considered at law his own bond, is to be looked upon, in equity, as the property of the estate; at least, until the administrator's accounts are settled, and he is found in advance to the estate. Pulliam v. Winston et al. 5 Leigh, 324. See Partridge v. Court, 5 Price, 419, &c.; and on an obligation to A. "ex'r of B." A ought to sue thereon in his individual character, and declare in the debet and detinet; if, however, he declare in the detinet only, the irregularity will be disregarded, even on special demurrer. Bailey et al. v. Beckwith's ex'r, 7 Leigh, 604.

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