Farmers' Bank v. Cullen's Adm'r.

4 Del. 289

• Court: Superior Court of Delaware
• Decided: July 5, 1845
• Status: Published

Opinion

By the Court.

—There is a misjoinder of causes of action. The first count seeks to charge defendant as administrator de bonis testatoris. The second count is on an indebtedness of the administrator personally, and not in respect of the estate, for though the expression is money had and received by him as administrator, he could not as administrator receive money for the use. of the plaintiff, which would.be a specific appropriation of it; whereas, all monej coming into his hands as administrator belongs to the estate, and must go into the general administration of the estate. So of the third count. It alledges an ac-. count stated between plaintiff and defendant as administrator, but not in respect to the promises of the intestate, or the assets of the estate.

An executor cannot be charged as such for money had and receceived as executor to the use of plaintiff. Such a count is for a personal charge; plene administravit cannot be pleaded to it: the judgment must be de bonis propriis. (1 H. Blac. 108.) A count for money had and received as executor .cannot be joined with a count on an account stated in relation to assets of the estate.; because on this latter count the judgment will be de bonis testatoris. (14 C. L. Rep. 77; 3 Harr. Rep. 500; 2 Saund. Rep. 117, b.; 3 Wend. 244; 12 Johns. Rep. 349; Chit. Cont. 274-5; 14 C. L. Rep. 97; Steph. N. P. 235.)

The defendant had judgment on the demurrer.