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

36. § 62. Executors or administrators may sue, or be sued upon all judgments, bonds, or other specialties, bills, notes or other writings of their testators or intestates, whether the executors or administrators be, or be not,(dd) named in such instruments, and also upon all their personal contracts. 1785, c. 61, 12 Stat. Larg. 152; 1792, c. 92, R. C.

37. § 64. Actions of trespass may be maintained by or against(ee) executors or administrators, for any goods taken or carried away (2) in the lifetime of the testator or intestate; and the damages recovered shall be, in the one case, for the benefit of the estate, and in the other, out of the assets. lbid. 4 Ed. 3, c. 7.*

38. § 65. Executors of executors shall do and perform all things, in the execution of the will of the first testator, which shall remain undone at the death of the executor; and shall and may sue or be sued, in all things respecting the estate, in the same manner as such first executor could or might have sued or been sued. 25 Ed. 3, st. 5, c. 5, and 1bid.(ff)

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

39. § 66. The executor or administrator of an executor in his own wrong, and the executor or administrator of a rightful executor or administrator, by whom any waste shall have been committed, shall be chargeable in the same manner as his testator or intestate might have been.(3) May 1730, c. 8, 4 Stat. Larg. 284; Oct. 1748, c. 5, 5 Stat. Larg. 465; 1792, c. 92, R. C.; 30 Car. 2, c. 7; 4 and 5 Wm. and Mar. c. 24.

40. 63. When any person or persons shall have heretofore recovered, or shall hereafter recover any judgment against executors or administrators, in their representative character; and, upon execution issued upon such judgment, it shall be returned that there are not found, in the possession of the said executors or administrators, sufficient assets(5) of the testator or intestate, to pay and satisfy the whole, or any part, of such judgment, (costs excepted,) such person or persons, recovering such judgment, his, her or their executors or administrators, (6) may, upon such return of the execution as aforesaid, im1825, Ses. Acts 1824-5, § 11, p. 13, 14, Sup. R. C. p. 119, by which it is provided, that hereafter, upon the qualification of any executor of an executor, it shall be the duty of the courts in which such qualification shall take place, if the executor shall desire to represent the estate of the first testator, to require bond with good security of such executor, in a sum sufficient to ensure the performance of all things in the execution of the will of the first testator, (payable to the same persons to whom his bond as executor, is made payable,) which shall remain undone at the death of the executor of such first testator; and the bond to be executed upon such qualification, shall be as effectual to bind as well the principal as the sureties in such bond, for the faithful performance of the duties of such executors of executors, in relation to the estate of the first testator, as for the faithful performance of the duties of such executors of executors, in relation to the estate of the executor of such first testator. If such executor shall fail to give bond and security as aforesaid, for the faithful administration of the estate of the first testator at the time of qualifying as executor to the executor, he shall be regarded as having renounced all authority over the estate of the first testator; and a representative of that estate may be appointed, in the same manner as if the first executor had died intestate.

(3) That is, liable directly to the creditors, legatees or distributees of the testator or intestate. For an administrator de bonis non cannot sue the representative of a former executor or administrator, either at law or in equity, for assets wasted or converted by the first executor or administrator. This remedy once existed in Virginia by act of 1661, 2 Stat. Larg. 91, which was repealed by act of 1711, 4 Stat. Larg. 12. Coleman, adm'r &c. of Wernick v. M'Murdo et al. 5 Rand. 51; see Allen et al. v. Irwin et al. 1 Serg. & Raw. 549. Hagthorp v. Hook, 1 Gil. & Johns. 270.

An administrator sells personal property of decedent, partly for cash, and partly on

credit, and admits on oath, in answer in chancery, that he did not mean to convert proceeds to his own use; before credit payment become due, his administration is revoked, and administrator de bonis non granted to another: Held, administrator de bonis non entitled to sue for, and recover the deferred payment of the vendee. Heffernan's adm'r v. Grymes's adm'r, 2 Leigh, 512. But an administrator de bonis non may maintain an action of debt, on a judgment obtained by the executor. Dykes & Co. v. Woodhouse's adm'r, 3 Rand. 287; and Just. of Buckingham for Hill's adm'r v. Cunningham's ex'r, 26 May 1832, ct. app'ls. And he may maintain a writ of error, on a judgment against the previous executor or administrator. Dale v. Roosevelt, 8 Cowen, 333. And see act March 29, 1831, Ses. Acts, 1830-31, c. 32, p. 101, by which it is enacted, "that where any suit hath been or shall be commenced and pending, or any judg ment or decree hath been or shall be recovered in any of the courts of this commonwealth, by executors or administrators upon contracts made, or for cause of action which accrued in the lifetime of the testator or intestate, it shall and may be lawful in such case, for the administrator de bonis non of such testator or intestate, to sue forth a scire facias to revive and prosecute to judg

ment or decree such suit so commenced and pending, and to have execution upon such judgment or decree."

(5) A fi. fa. on judgment against an administrator, is returned, "no unadministered or unincumbered effects found," &c.: Held, a return of nulla bona, to entitle plf. to an action on the administrator's bond. Allen et al. v. Cunningham et al. 3 Leigh, 395.

(6) M. H. adm'r of R. H. recovers a judgment against E. B. adm'x of R. B. for debt due pli.'s intestate, and sues out a fi. fa. thereon, which is returned nulla bona; then M. H., plf. dies, and administration de bonis non of R. H.'s estate is granted to A.: Held, the action of debt on the adm'n bond of E. B. against her and her sureties, lies at the relation of A. the adm'r de bonis non of R.

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

mediately commence and prosecute his, her or their action, against such executors or administrators, and their securities, or against either of them, or the executors or administrators of either of them, upon the bond given by them, for the performance of the duties of such executors or administrators; in which said action the defendants may plead any plea or pleas, and in support thereof offer any evidence, which would be legally admissible in any action against executors or administrators suggesting a devastavit. See March 1657-8, act 30, 1 Stat. Larg. 426; Feb. 7, 1814, c. 13.(gg)

41. § 67. If all the executors named in any last will, shall refuse to undertake the executorship, or, being required to give security, shall refuse to give, or be unable to procure the same, and no person will apply for administration with the will annexed, or if no person shall apply for administration of the goods and chattels of any intestate, it shall be lawful for the general court, or other court having jurisdiction of such probat or administration, as herein before mentioned, after the expiration of three months from the death of the testator or intestate, to order the sheriff, or other officer of the county or corporation, to take the estate into his possession; (alt. from Dec. 1656, act 2, 1 Stat. Larg. 416; Mar. 1657-8, act 105, Ib. 480; 1705, Oct. 3 Stat. Larg. 374, x. xI.; 1748; act 1785, c. 61,) whereupon such sheriff or other officer, without being required to give any other bond or security, than he may have already given, or to take any other oath of office than he hath before taken, shall be, to all intents and purposes, the administrator, with the will annexed, of the testator, if there be a will, or the administrator of the intestate if there be no will, and shall be thenceforward entitled to all the rights, and bound to perform all the duties of such administrator. (1) The court, however, shall

H. and not at the relation of the representative of M. H. the first adm'r of R. H. by virtue of this act. Allen et al. v. Cunningham et al. 3 Leigh, 395.

(gg) For the law prior to the provisions of this section, see Braxton, ex'r of Claiborne v. The Spottsylva. Just. 1 Wash. 31; 4 Call, 308, S. C. more fully reported; and Taylor et al. v. Stewart's ex'rs, 5 Call, 520; Gordon's adm'r v. The Frederick Just. 1 Munf. 1; Catlett et al. v. Carter's ex'rs, 2 Munf. 24; Hairston v. Hughes et al. 3 Munf. 568; Spottswood v. Dandridge et al. 4 Munf. 289. By these decisions the general rule was settled, that, before a creditor can call upon the securities of an executor or administrator, he must first establish a devastavit against the executor or administrator by a distinct suit. The case in 4 Munf. 289, was in equity, and by its peculiar circumstances, taken out of the general rule. Although in the case of a creditor, the demand must be established against the executor, before a suit can be brought on the executorial bond, yet in the case of a legatee, a suit in equity may be brought on it in the first instance; because the decree can be made so as to operate against the executor in the first instance, and an account of the assets can be taken at once. Taliaferro's ex'rs et al. v. Thornton et ux. 6 Call, 21.

If, in an action of debt, on a judgment against an administrator, suggesting a devastavit, the plaintiff produces the judg

ment and execution, and the defendant demurs to the evidence, the plaintiff is enti tled to a final judgment on the demurrer. Nuttall's adm'r v. M'Douall, 6 Call, 53.

(1) A sheriff, to whom the estate is committed, is, to all intents and purposes, an administrator, under this law; and, therefore, is responsible for the due administration of the estate, after his office of sheriff expires. Cocke v. Harrison et al. 3 Rand. 494.

Where the representative of a sheriff is sued on account of an estate committed to his hands, and it appears that the deputy (who is also sued) had the entire manage. ment of the estate, the court may decree against the deputy, in the first instance, if assented to by plaintiff, reserving liberty to him to resort to the court, for ulterior decrees against other parties: but if such consent be not given, it is the duty of the court to decree between the defendants in order to throw the burthen on the person ultimately liable. Ibid. and Dabney's adm'r v. Smith's legatees, 5 Leigh, 13.

Douglass, is commissioned sheriff of Loudoun county in July 1805, and continues to act as sheriff for the second year, 1806-7, without having received a commission for the second year; the estate of a decedent is committed to him by order of court during the second year: Held, that D. though not regularly commissioned, was sheriff until his successor was appointed, and responsible for the administration

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

have power, at any time afterwards, to revoke such order, and to grant letters testamentary, or letters of administration, to any person entitled thereto. When by the death of any executor or administrator, or sheriff or other person to whom the estate of a testator or intestate shall have been committed, there shall be no personal representative of such estate, and no person shall take letters of administration, or letters testamentary upon such estate, within three months after such death, it shall be lawful for the court, in the manner aforesaid, to commit such estate to the sheriff or other officer of the county or corporation, who shall thereupon, in like manner, be the administrator de bonis non, of such estate. Rev. 1819; Jan'y 7, 1807, c. 94, 2 Old R. C. p. 120.

42. § 28. It shall be the duty of the clerks of the respective courts of record within this commonwealth, to deliver or cause to be delivered, on or before the first day of June annually, to the clerk of the general court, a list of all certificates for probats and administrations granted in their courts respectively, within the year next preceding the first day of April, in this form?'

For which said docket and list, the said clerks, respectively, may demand of the clerk of the general court his receipt. And if any such clerk shall fail herein, for every failure he shall forfeit and pay to the commonwealth forty dollars, to be recovered on motion, without notice, in the general court, and the onus probandi shall lie on the defendant. And the clerk of the general court shall, after the first day of June, in each year, deliver to the attorney general a list of the clerks (if any) who shall have failed to deliver, or cause to be delivered to him, the lists of certificates for probats and administrations, agreeably to the directions of this act; and it shall be the duty of the attorney general to proceed to a recovery of the penalty aforesaid. See Oct. 1660, act 27, 2 Stat. Larg. 27; Nov. 1711, c. 2, 4 Stat. Larg. 25; 1748; 1785; 1792; Feb. 12, 1811, c. 13. [See act of parliament, (1833) the Romilly act, for rendering freehold and copyhold estates assets of the payment of simple contract debts.]

of the decedent's estate by his deputy; and is responsible for the acts of his deputy in administering the fund arising from the real as well as the personal estate; and for

his deputy's administration as well after as during his continuance in office. Douglass's ex'r v. Stumps et al. 5 Leigh, 392.

tor or intestate, leaving unpaid any debt of superior dignity, due by judgment or otherwise, such executor or administrator shall not thereby be chargeable out of his own estate, with the payment of such debt of superior dignity, or any part thereof, unless at the time of paying the debt of inferior dignity, he had actual notice of such debt of superior dignity."

The order of administration between citizen and citizen, is: 1st. funeral and testamentary charges. As against a creditor, the rule of law is, that no more shall be allowed for funeral expenses than is abso

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