calls. Wentworth v. Chevell, 3 Jur. (N. S.) 805; S. C., 26 L. J. Ch. 760.

§ 9. For losses, etc. Reasonable care and proper diligence are expected from executors and administrators, and watchfulness ought always to be brought to the fulfillment of the trust. When these qualities have been exercised, they will not be held responsible for losses which prudent management could not foresee nor avoid; nor will they be charged with gains which the like conduct on their part have not realized. Voorhees v. Stoothoff, 11 N. J. Law, 145; Deberry v. Ivey, 2 Jones' (N. C.) Eq. 370; Webb v. Bellinger, 2 Desaus. (S. C.) 482; Whitney v. Peddicord, 63 Ill. 249. And see ante, art. 1, § 9. Nor are they liable for the mismanagement or insolvency of their agents, which they could not foresee or control. Calhoun's Estate, 6 Watts (Penn.), 185; Christy v. McBride, 2 Ill. 75.

But, in general, property or money collected by an executor or administrator in his representative capacity, is held as assets, and he is liable to any party having a good title to such assets. De Valengin v. Duffy, 14 Pet. (U. S.) 282; Montgomery v. Armstrong, 5 J. J. Marsh. (Ky.) 175; Duffy v. Neale, Taney, 271.

§ 10. For negligence. Where the loss of goods belonging to the estate is occasioned by the negligence of the personal representative, he is chargeable with their value at the time of their loss, with interest (Harris v. Parker, 41 Ala. 604), although the goods never came into his possession. Tuttle v. Robinson, 33 N. H. 104. See Irwin's Appeal, 35 Penn. St. 294. So, if he improperly neglects to sell the personalty belonging to the estate, and uses it in the meantime, he will be charged with such property, at its appraised value. Benson v. Bruce, 4 Desaus. (S. C.) 463.

An executor or administrator, who has been guilty of gross negligence in omitting to collect a debt due the estate, will be personally charged with the debt and interest. Shaffer's Appeal, 46 Penn. St. 131; Smith v. Hurd, 16 Miss. 682; Southall v. Taylor, 14 Gratt. (Va.) 269; Feagan v. Kendall, 43 Ala. 628. So, an administrator who permits an attorney to retain in his hands, for several years, money of the estate collected by him, without any effort to collect it from the attorney, is . chargeable with such money, on motion of the parties interested. Abercrombie v. Skinner, 42 Ala. 633. And if he holds notes belonging to the estate, the makers of which become suddenly insolvent, he must put the notes in suit at once, or he will become personally liable to the distributees. Roberts v. Summers, 47 Ga. 435. See O'Dell v. Young, 1 McMull. (S. C.) Ch. 155; Glover v. Glover, id. 153. An administrator is not, however, chargeable for not immediately bringing

suit on a note held by the decedent, where the drawer continued in good credit, and no bad faith or gross negligence was shown on the part of the administrator. Keller's Appeal, 8 Penn. St. 288. And see Williams v. Skinker, 25 Gratt. (Va.) 507. So, it is held, that an administrator is not liable for a debt due to his intestate's estate, because he neglects to sue the debtor, who appears to be unable to pay the debt. Nelson v. Page, 7 id. 160; Mitchell v. Trotter, id. 136. And, in general, the burden of proof is on the party seeking to charge the personal representative with a want of diligence in collecting debts due the estate. Sheppard v. Gill, 49 Ala. 162; Deas v. Spann, 1 Harp. (S. C.) Ch. 176.

Where, through mistake of law, an administrator neglected to bring a suit until he was barred by the statute of limitations, no fraud or willful default being imputable to him, the court refused to make him responsible for the loss of the property belonging to his intestate's estate. Thomas v. White, 3 Litt. (Ky.) 177.

§ 11. For devastavit. The word devastavit is commonly employed in the general sense of wasting the goods of the deceased; or in equity, in the sense of a breach of trust or misappropriation of the assets. Bro. Law Dict.; Taliaferro v. Bassett, 3 Ala. 670. And when an ex ecutor or administrator has been guilty of a devastavit, he is required to make up the loss out of his own estate, as far as he had, or might have had, assets of the deceased. Thus, if an executor or administrator lets judgment go against him by default, it amounts to a confession of assets; and if he does not pay the execution, or produce assets, he is guilty of a devastavit, whereby he subjects himself to an action of debt upon the judgment, to be satisfied out of his own goods and chattels. Walker v. Kendall, Hard. (Ky.) 412. And see Cope v. McFarland, 2 Head (Tenn.), 543. There are many cases ofdevastavit other than by a direct abuse of the effects of the deceased, and several instances have been given in preceding sections. Thus, an administrator who fails to collect the debts of the estate he represents, as they become due; or collects the same in illegal or worthless funds, is guilty of a devastavit. Oglesby v. Howard, 43 Ala. 144; Seigleman v. Marshall, 17 Md. 550, Mitchell v. Lutn, 4 Mass. 654; Moore's Estate, 1 Tuck. (N. Y.) 41. And see State v. Sloan, 64 N. C. 702. So, it is a devastavit not to plead the general statute of limitations (Thompson v. Brown, 16 Mass. 172. And see Woods v. Elliott, 49 Miss. 168); or to pay debts of an inferior degree, where the assets retained are insufficient to pay those of a higher degree (Braxton v. Winslow, 4 Call. [Va.] 308; Hinton v. Kennedy, 3 So. Car. 459. See Stephens v. Barnett, 7 Dana [Ky.], 257; Pope v. Wickliffe, 7 T. B. Monr. [Ky.] 412); or to deliver

the property to the next of kin of the intestate, leaving the debts unpaid. McNair v. Ragland, 1 Dev. (N. C.) Eq. 516. And after a judgment against an administrator for payment out of specified assets, any other application of them will render him liable for a devastavit. Davies v. Flewellen, 29 Ga. 49. And see Smith v. Jewett, 40 N. H. 513.

But an executor or administrator cannot be charged with a devastavit in respect of property of which it does not appear that he ever knew the existence (Jones v. Ward, 10 Yerg. [Tenn.] 160); nor is he liable at law, as for a devastavit, in relation to equitable assets, unless by force of some statute (Green v. Collins, 6 Ired. [N. C.] L. 139); nor can a creditor charge as a devastavit an act done by his consent, and with his concurrence. Cain v. Hawkins, 5 Jones' (N. C.) L. 192. So, the husband of the executrix is not, after her death, liable for waste committed by the executrix before coverture, nor for waste committed during coverture, unless he concurred in it. Elliott v. Elliott v. Lewis, 3 Edw. Ch. 40. And it does not amount to a devastavit for an executor to lend out money of the estate, not wanted for the uses of the will, on private security, provided he exercises a fair and reasonable discretion on the subject. Webster v. Spencer, 3 Barn. & A. 360.

Executors are as much liable for loss by non-feasance as by misfeasance, and will be compelled to pay the whole amount of loss sustained by reason of their neglect. If all are equally in the wrong, the loss will be divided equally between them. Fisher v. Skillman, 18 N. J. Eq. 229. But where a widow, under a will, remains in full possession of the testator's estate, and is one of his executors, she is entitled to the possession of moneys and securities for moneys; and her co-executors are not answerable for her unjust or improvident conduct, unless they can be implicated in fraud or collusion with her. Vanpelt v. Veghte, 2 N. J. Law (Green), 207.

The husband of an executrix or administratrix is liable for all the assets received or devastavits committed by himself or by his wife during the coverture, and his estate remains liable after his death. Smith v. Smith, 21 Beav. 385. See Adair v. Shaw, 1 Sch. & Lef. 263; Bachelor v. Bean, 2 Vern. 61. But if the husband of a feme covert executrix commits a devastavit, and becomes bankrupt, the wife surviving is not liable. Beynon v. Gollins, 2 Bro. C. C. 323. See Calhoun's Appeal, 39 Penn. St. 218.

An administrator cannot be charged with a devastavit, where, as the representative of his intestate, he holds demands exceeding that claimed against the intestate, but may set off the demands. Sayre v. Lewis, 5 B. Monr. (Ky.) 90. So, a judgment against an executor or administrator, in his individual, and not in his representative capacity, VOL. III.-33

will not support an action founded on a devastavit. Van Horn v. Teasdale, 9 N. J. Law, 379.

§ 12. For acts of each other. When several persons are appointed executors, they are generally regarded in law as one person, and, therefore, the acts done by one, which relate to the testator's goods, such as sale, delivery, possession, etc., are considered as equivalent to the acts of all, as they possess a joint authority. Wilkerson v. Wootten, 28 Ga. 568; Gilman v. Healy, 55 Me. 120; Hall v. Boyd, 6 Penn. St. 270. But, in relation to their several responsibilities, the rule is different. One executor is not liable for the devastavit committed by his co-executor, nor, if one receives assets without the knowledge of the other and misapplies them, is the latter, or his estate, liable at the common law. Irwin's Appeal, 35 Penn. St. 294; Hargthrope v. Milforth, Cro. Eliz. 318; Sutherland v. Brush, 7 Johns. Ch. 17; Brazer v. Clark. 5 Pick. 96; Gaultrey v. Nolan, 33 Miss. 569; Peter v. Beverly, 10 Pet. 532; Clarke v. Blount, 2 Dev. (N. C.) Eq. 51; Kerr v. Waters, 19 Ga. 136; Clarke v. Jenkins, 3 Rich. (S. C.) Eq. 318; Wood v Brown, 34 N. Y. (7 Tiff.) 337. And see Shreve v. Joyce, 36 N. J. Law, 44; 13 Am. Rep. 412. So, as it regards co-administrators, they are, in general, primarily liable only for the acts in which they respectively concur. See Ray v. Doughty, 4 Blackf. (Ind.) 115; Sutherland v. Brush, 7 Johns. Ch. 22; State v. Belin, 5 Harr. (Del.) 400; Davis v. Thorn, 6 Tex. 482. But co-administrators, who give a joint bond as security for faithful administration, are jointly liable as principals for waste committed by either, though without fault upon the part of the other. Newton v. Newton, 53 N. H. 537; Pearson v. Darrington, 32 Ala. State v. Hyman, 72 N. C. 22. See Hall v. Carter, 8 Ga. 388. The principle that where an administrator, who has the actual control or possession of assets belonging to the estate, hands over such assets to a co-administrator, the former shall be answerable for their subsequent loss, is held to be applicable where there are creditors sustaining loss by any waste of the assets. Daly's Estate, 1 Tuck. (N. Y.) 95. But such a rule cannot prevail if there has been any good reason why such assets should have left the custody of the one representative of the estate, and have passed into that of the other. Id. See Townsend v. Barber, 1 Dick. 356; Moses v. Levi, 3 Younge & Coll. 359.

227;

If an executor enables his co-executor to obtain a sum of money belonging to their testator's estate, which the co-executor misapplies, such executor will not be responsible for the loss, if his co-executor could have obtained the money by his own independent act. Candler v. Tillett, 25 L. J. Ch. 505; S. C., 22 Beav. 257. But an exec

utor will be responsible for any loss which may arise by leaving the securities of their testator in the hands of his co-executor, who was also the mortgagor, even though such co-executor was the legal and confidential adviser of the testator, in whose custody he always left his title deeds and securities. Id. See Langford v. Gascoyne, 11 Ves. 333; Stearn v. Mills, 1 N. & M. 434; S. C., 4 B. & Ad. 657; Weetjen v. Vibbard, 5 Hun (N. Y.), 265. So, where one executor is active in aiding his co-executor to commit a devastavit, whether intentionally or not, he will be liable with him for it. Hall v. Carter, 8 Ga. 388.

§ 13. For acts of predecessor. Where an administrator has died, and another has been appointed, the latter is not liable for the assets which came to the hands of his predecessor. Atty.-Gen. v. Kohler, 9 H. L. Cas. 654. He derives his title from the decedent, and not from the former executor or administrator (Commissioners of Foreign Missions, 27 Conn. 344); and his liability is, therefore, restricted to the goods remaining un administered. Spence v. Rutledge, 11 Ala. 590; Carrick v. Carrick, 23 N. J. Eq. 364; Alsop v. Mather, 8 Conn. 584. As between him and his predecessors there is no privity, and he is not responsible for any devastavit or default of theirs. Id.; In re Small's Estate, 5 Penn. St. 258. See ante, art. 1, § 4. Nor are the representatives of a joint executor responsible for the mal-administration of the survivor, happening after the decease of the former. Brazer v. Clark, 5 Pick. 96; Towne v. Ammidown, 20 id. 535.

While an administrator de bonis non has power under the Georgia statute to call upon the representatives of his deceased predecessor to account with him, the heirs at law and creditors have, also the same right upon a proper case made. But if the administrator de bonis non fails so to do, the heirs and creditors of the first intestate cannot sue the administrator de bonis non for this failure, unless they show that he knew of the devastavit, and was guilty of some special neglect, not equally chargeable upon themselves. Bowers v. Grimes, 45 Ga. 616.

§ 14. For legacies. The cognizance of legacies was confined in England to ecclesiastical and equity courts, and the common-law courts did not assume jurisdiction in suits for legacies, except upon an express promise by an executor, in consideration of forbearance (Deeks v. Strutt, 5 Term R. 690; Doe v. Guy, 3 East, 120; De Witt v. Schoonmaker, 2 Johns. 243, 246); or, unless there was evidence that the personal representative held the money, not as executor or administrator, but in his individual character, upon a new contract for a loan of it to him. Rundle v. Allison, 34 N. Y. (7 Tiff.) 180; Loder v. Hatfield, 6 N. Y. Sup. (T. & C.) 229; S. C., 4 Hun, 36. And see Lawton v. Fish, 51 Ga. 647; Larn v. Linstead, 2 Md. Ch. 162. It has, however,