Potts ex rel. Wollerton v. Smith

3 Rawle 361, 1832 Pa. LEXIS 72

• Court: Supreme Court of Pennsylvania
• Decided: February 2, 1832
• Status: Published

Opinion

The opinion of the court was delivered by

Kennedy J.

Ruth May, James B. Harris and. John Smith joined in taking out letters of administration upon the estáte of Robert May, deceased, and gave bond with sureties in the name of the commonwealth, in the form prescribed by law, to the Register. John Smith died, Ruth May and James B. Harris surviving, who settled their administration account, which was approved and confirmed by the Orphan’s Court of Chester county. From this account, as settled, there appeared to be three thousand seven hundred and ninety-one dollars and sixty-eight cents remaining in the hands of the accountants, moneys arising from the sale of goods of their intestate, and the collection of debts due and owing to him at the time of bis decease. A suit was brought upon the administration bond, in the name of the commonwealth, against Elizabeth Smith, executrix, and Levi Bull, who survived Thomas B. Smith, executors, &c. of John Smith, and a cautionary judgment- had against them for the amount of the bond. In the meantime, Ruth May and James B. Harris both died; after which letters of administration de bonis non of Robert May were granted to David Potts, who sued out a scire facias upon the judgment obtained as aforesaid, for the purpose of recovering the three thousand seven hundred and ninety-one dollars and sixty-eight cents, charged against Ruth May and James B. Harris in their administration account already mentioned, and who had been co-administrators with John Smith the testator of the defendantsrin this case. On the trial of the cause below, the only question was, whether upon the foregoing state of facts the plaintiff was entitled to a verdict in law for the three thousand seven hundredand ninety-one dollars and sixty-eight cents. The court charged the jury that in law, upon the facts as already stated and which were not then controverted, their verdict ought to be in favour of the defendants, which was accordingly

The error assigned is to this charge of the court. This case involves a question which does not appear to have been noticed in the court below, nor was it raised here; which is, — Can the representatives of a deceased co-administrator and co-obligor, be made liable for the assets or goods of the intestate, which-came exclusively to the possession arid management of his surviving co-administrators and coobligors, who have settled their administration account, in which they alone are .charged with the' amount 1 As the court, however, are of opinion that the plaintiff cannot maintain his scire facias upon the judgment against the executors of John Smith, nor yet against the representatives of any of the first administrators of Robert May the intestate, it becomes unnecessary to consider or decide this question.

In the first place it will be proper to recur to the law as it stood originally in regard to the personal property of intestates. At the common law upon the death of a person dying intestate, the whole of his personal estate belonged to the ordinary, or bishop, to be disposed of by him according to his conscience, to pious uses. Neither his wife, children, nor any of his kindred, had claim or right to any part of it. Occasionally they might be among the number who were appointed to receive, but this depended entirely upon the will and pleasure of the ordinary, for he had the right by law to the absolute disposition of it. He was not even bound to pay the debts of the intestate, out of his estate, until the statute of Westminster 2. 13 Edw. 1. cap. 19., imposed that obligation upon him so far as he had assets, and gave an action of debt against him if he disposed of the goods and neglected or refused to pay the debts. 11 Vin. Abr. 52. note pl. 1. Next came the statute of 31 Ed. 3. cap. 11., by which the ordinary was required to depute the next and most loyal friends of the person dying intestate to administer his goods; and the persons so deputed were thereby authorized to recover by action, debts due to the deceased, in the same manner as executors, and to answer and account for the same, as also for all other assets of the deceased, as executors. 11 Vin. Abr. 91 pl. 1. To this succeeded the statute of 22 Hen. 8 cap. 5 sec. 3., by,which the ordinary was directed in cases of persons dying intestate, or of the executors refusing-to prove the testament, to grant administration to the widow or next of kin, or both, at his discretion, taking surety for their true administration. Ibid. pl. 2. This statute made it the duty of the ordinary to grant administration of the goods of the deceased to the widow or next of kin, leaving it still, however, entirely at his discretion to give it to the one or the other, and in case of there being several of the next kin in equal degree, to select any one, or more of them, and after having once granted the administration, he was bound by it, and could not revoke it as he might have done at common law. 11 Vin. Abr. 52, note to pl. 1. page 115. pl. 15. Offley v. Best, 1 Lev. 186. Betsworth v. Betsworth, Style, 10. Stapleton v. Sherrard, 1 Vern. 315. Sand’s case, 3 Salk. 22. 11 Vin. Abr. 114. note to pl. 3. But still it was found that the ordinary had such a latitude of discretion in selecting from among the next of kin, as to leave the most helpless and needy of them out of the administration, and thus deprive them of all benefit and assistance from,the estate of the deceased; or where the children were of such tender age, as to be incapable of administering, and for the same reason stood most in need of a subsistence from the estate, or were abroad beyond seas, administration was granted to a stranger, who got the whole of the estate, because the administration being once committed to a person, he thereby became entitled to the whole of the personal estate, after paying the debts. This the ordi naries endeavoured to prevent by taking bonds of the administrators, which was, that after debts and legacies were paid, the administrator should distribute the residue of the goods., at the appointment of the ordinary. This practice continued until about the 12th of King James, when the temporal courts first granted prohibitions to restrain the spiritual courts from compelling administrators to make distribution according to these bonds, and decided that the bonds, not being taken in conformity to the statute, were void. 11 Vin. Abr. 52. note to pl. 1. 183, pl. 1. 357, pl. 2. Seawney v. Elbridge, Hob. 83 pl. 110. s. 6. Hughes v. Hughes, 1 Lev. 233.

It is clear then, that from the passage of the statute of 21 Hen 8. cap. 5., until the passage of 22 and 23 Car. 2., commonly called the Statute of Distribution, that administrators stood on the same footing, or better, because they had no legacies to pay, with regard to the surplus of the personal estate of the deceased, after payment of all his debts, as executors, that is, entitled to it as absolute owners. By the statute of Westminster, 2., the ordinary was required to pay the debts of the deceased when the goods came to him to be disposed of, so far as they extended, in such sort as the executors of such persons should have done in case they had made testaments. 11 Vin. Abr. 52. note to pl. 5. The obligation imposed by this statute devolved upon administrators when they came to be appointed by a commission, from the ordinary, that was no longer considered a mere naked authority and revocable, but coupled with a right of property, and an interest, that rendered the grant obsolute and irrevocable, and bound them to pay debts after the manner of executors ; but if executors sold the goods or collected the debts of the testator, and died without paying the debts of the testator, it was a devastavit in them and the creditors were without remedy. They could bring no action against the personal representatives of such executors, for the injury sustained by the waste committed was in the nature of a tort, where the rule is, actio personalis moritur cum persona. 11 Vin. Abr. 219. pl. 4. Sir Brian Tuck’s case, 3 Leo. 241. Brown v. Collins, 1 Ventr. 292. 1 Saund. 219. d. note. A remedy however was provided for this, by-the statute 30 Car. 2, cap. 7., explained and made perpetual by 4 and 5 W. & M. cap. 24. sec. 12., which makes the executor, or administrators of any executor or administrator, 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 test-atom or intestate would have been if they had been living. Now to whom would their testator or intestate have been liable if living 1 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 fien 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 the 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's note 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 remain unadministered. For unless they remain in specie, it cannot 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. 2. 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 wmuld 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 par.t of the administrator de bonis non. Beside before the statute of 22 and 23 Car. 2„ 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 every thing 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 interven tion of an administrator de bonis non, under the provisions of the statutes of 30 Car. 2, 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. & Pull. 311., Chief Justice Eyre says, “every thing is unadministered which has not been reduced into the actual possession of the executor and converted by him.” In Wankford v. Wankford, 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 seises 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 Bacon's Abr. title Executors and Administrators, 19,20., where it is said, that “ an administrator de bonis non is entitled to all the goods and personal estate, such as terms for years, household goods, &c. which remain 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 cannot 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 cannot 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 & 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 ca.se 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 Cha. Ca. 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 fell due under the lease. Drew v. Bayly, 2 Lev. 100. S. C. Freeman’s Rep. 392. 1 Ventr. 275., and cited in Noel v. Robinson, 1 Vern. 94. The same question was also decided in the same way in Norton v. Harvey, 1 Ventr. 259. In these cases it was said by Lord Hale, that the rent when received would be assets, so that the fact of the money or other thing being assets does not determine it to belong to the administrator de bonis non.

This subject was ably and fully discussed in the court of appeals of Virginia; first by counsel who argued the cause twice, and afterwards by the judges, who delivered their opinions seriatim, in the case of Coleman administrator de bonis non of Wernick v. M’Murd & Prentis, in which it was decided, that the administrator de bonis non could not 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, but such suit may be brought directly by creditors, lega tees or distributees. 5 Rand. 51. This Court, at the last Sunbury session, decide in Kendal’s administrator v. Lee, a case not yet reported, that the administrator de bonis non was not entitled to receive the money due upon a bond taken by the first administrator to himself to secure the payment of part of the purchase money of land sold by him as the property of the intestate, under a decree of the Orphan’s Court for the purpose of paying the debts of the intestate and supporting his minor children; and that a receipt given by the administrator de bonis non for the part of the amount of the bond paid to him by the obligor was no defence pro tanto in an action upon the bond by the personal representative of the first administrator. And although this was not the case of a bond taken by the first administrator to secure the payment of the price of personal property of the intestate sold by him, yet a majority, of the court were of opinion that even in that case the administrator de bonis non would have no claim to the bond or the money' due upon it, because it was neither goods nor moneys of which the intestate died possessed, and which still remained not administeredand the Chief Justice, who delivered the opinion of the court, has shewn very clearly the law to have ever been, that the administrator de bonis non could .not claim the money due on a bond taken by the first administrator upon a salé of either or real estate made him.

It is manifest too that the late Chief Justice of this court, from what he has said in delivering the opinion of the Court in the case of Allen et al. v. Irwin, 1 Serg. & Rawle, 549, was inclined to think that the administrator de bonis non could not recover in any form of action against the administrators of the executor, the balance due from such executor upon the settlement of his administration account of the estate of the testator. He says, “ I think it well enough settled that the administrator de bonis non could not support the present action” (which was assumpsit) “ by any principle of the common law. He is entitled only to such goods or chattels of the testator as remained in specie in the hands of the executor at the time of his death, or to such money as belonged to the testator’s estate, and had been kept by the executor separate and unmixed with his own. In all other cases the property was considered as-vested in the executor and could_ not be recovered in any form of action by the administrator de bonisnon. That such is the law will appear by the opinion of Chief Justice Holt, in the case of Wankford v. Wankford, 1 Salk. 306. And that it was so taken by Chief Justice Parsons, may be inferred from his opinion in Grout v. Chamberlin, 4 Mass. 611. In Pennsylvania, however, where the executor is held to be a trustee for the next of kin, for such part of the personal estate as is not given away by the testator, there are strong reasons for supporting an action at law, provided chancery would support a bill filed by the administrator de bonis non in cases where the executor is a trustee for the next of kin. We directed the attention of the counsel to this point, but their researches here produced no instance of a bill in equity being sustained in such case. I have no doubt but an action will lie, in our courts, by a creditor or legatee of the testator or by the next of kin for the undisposed surplus of the personal estate. There does not seem therefore to be any necessity for the present action.” The counsel for the defendant in this last case, are stated to have cited Anderson, 23 pl. 49. Moor, 4. pl. 13 S. C. cited Ray. 82. in Paschal v. Warren, Cro. Car. 450 pl. 23. 457 pl. 3. 457 pl. 3. 12 Car. B. R. Cleve v. Veer, S. P. in support of the proposition, that “ if the administrator of the first intestate, brings an action for goods of the intestate and recovers, his administrator shall have execution of the judgment, but when he has recovered then the administrator of the first intestate shall compel him in a court of equity to render so much of the money as he had recovered, to him, for the use of the first intestate: I apprehend there is some mistake in this. There is no such case as the one referred to in Raymond, and the other cases do not contain any such principle. They establish this, that if the first administrator of the intestate bring an action of debt in auter droit, and recover judgment, but dies before execution, the administrator de bonis non cannot have a revival and execution of the judgment, nor can the personal representative of the deceased administrator have it. The judgment upon the death of the first administrator becomes a nullity. The administrator de bonis non was entitled to demand and receive the debt, but if not paid to him voluntarily, he could only enforce it by bringing a new suit; which was certainly the law until 17 Car. 2. c. 8. s. 2. changed it in case of a judgment after verdict, and gave the administrator de bonis non a right to sue out a scire facias and take execution upon it. See 2 Saund. 72. n. note, and the cases there cited. I have not met with a single case to support, the proposition which is said to have been advanced by the counsel for the defendant in the case of Allen v. Irwin, nor have I found even a dictum to that effect, unless it can be made out by an inference from one imputed to Justice Hale in the case of Drew v. Bayly, 2 Lev. 100-1, a case already cited, where an administrator being possessed of a term for one hundred years, let for five years reserving a rent, and died. Upon suit brought by the executor of the deceased administrator it was adjudged that he was entitled to recover the rent, and not the administrator de bonis non. And Hale said, “ the executor of the administrator shall have this rent, but it shall be assets in his hands liable to the debts of the intestate, for which he shall be charged as executoide son tort.” If it were true that he would be chargeable with the rent wlien received as executor de son tort, it might perhaps be inferred that he would be so at the suit of the administrator de bonis non, as well as the creditors of the intestate, because I take it to be a general principle that an executor de son tort is liable to the action of the lawful executor or administrator. Carth. 104. 1 Ld. Raym. 661. 1 Com. Dig. tit. Administrator, c. 3. page 366, 4th ed. by Rose. Went. Exr. 331, Jeremy’s ed. It is difficult, however, to conceive how the executor of the administrator could be made to be an executor de son tort in receiving rent or moneys which the court decided that he and he alone had a right to receive. For executor de son tort, ex vi termini, means one who acts without authority, of his oion wrong. “ He is such as takes upon him the office of an executor by intrusion, not being so constituted by the testator or deceased, nor for want of such constitution substituted by the ordinary to administer.” Went. Exr. Jeremy’s ed. 320. The decisions in the Court of Equity in the cases of Barker v. Talcot & Shaw, 1 Vern. 473, and Butler v. Bernard referred to above, repudiate the idea- of the personal representative of the first executor or administrator being made liable to the administrator de bonis non, either as executor de son tort or otherwise. For it must be observed that the administrator de bonis non, and the personal representative of the first executor or administrator were parties in each of those two last cases, and being in a court of equity, where form, or such like objection would be no impediment, the money must be considered as having been decreed to such of the parties before the court as was ultimately entitled to receive it, and as finally settling the question between the representative of the first executor or administrator, and the administrator de bonis non, which of them should have it.

' Cases have been referred to in order to show that every thing growing out of or arising from the estate of the deceased, as the proceeds of sales made of the goods or of debts collected, and the fruits of suits brought for the conversion of the deceased’s property, although prosecuted by the executors or administrators in their own names, are still to be considered assets in the hands of such executors or administrators, and to be accounted for as such after their death by their representatives, if not done by themselves in their lifetime: of this there can be no doubt. In law as well as equity, notwithstanding the alteration or conversion of the goods by the executor or administrator, since the statute of Can 2. which in effect operates as a will for every person in England dying intestate, by disposing of and designating those who shall have his estate, the executors or administrators are considered trustees managing and administering the estate for the benefit of all concerned, that is, the creditors of the deceased who have the first claim upon the estate, and after paying them, the legatees or those entitled by the statute of distributions to the residue. But an administrator de bonis non is not, as I apprehend, to be considered a cestui que trust in such case, or as having claim in either law or equity, further than his commission as administrator de bonis non gives him a right, which is purely of a legal character, and extends only, as we have seen by the cases and authorities cited, to those goods and chattels, rights and credits, which were of the testator or intestate at the time of his decease, and remain unadministered, that is, in specie, unaltered or unconverted, by any act of the first executor or administrator. It is immaterial to creditors, whether they shall receive payment of their debts from the executor or administrator of the deceased executor or administrator, or of the administrator de bonis non ; and it is certainly the duty of the one as much as that of the other promptly and without suit to pay the creditors of the first testator or intestate' so far as either shall have assets of that character which are to be paid out by him in that way. It has been shown that if the executors or administrators die without paying the debts, and after having changed the specific character of the goods or debts of their testator or intestate, as by having converted the goods into money, or having collected the debts due and owing to their testator or intestate, or having taking new securities for them payable to themselves, and released or given up the old, that the creditors may sue and recover their debts of the personal representatives of such deceased executors or administrators, to the extent of the funds so converted or changed; and if a surplus should remain, that it may be recovered by the legatees or next of kin from them in a court of equity, where such exists, and in this state for want of a court of chancery, would be recoverable in courts of law. Hence there is necessity for placing such funds in the hands of the administrator de bonis non, or giving to him a right of action to recover the same. And although it has been said, and thought by some, that there is great inconvenience attending this course, and that every thing which is considered assets in any point of view, belonging to the estate of the first testator or intestate, and which has come to the hands of the first executor or adminitrator, whether converted or not, and for which he remained accountable at the time of his death, had better, upon that event, go into the hands of the administrator de bonis non for final administration ; yet, as it appears to me,' there is an objection which might be raised against this. It would be taxing the estate of the first testator or intestate with the costs of a double if not oftentimes with a still greater charge of administration. For the first and every subsequent administrator would be entitled to commissions or compensation for selling and receiving the moneys arising therefrom, as also for collecting the debts and paying all out again, although it might only be to the administrator de bonis non, that it was paid, and thus it would become liable to deduction for commissions as often as it wojuld pass from one administrator to the hands of a subsequent one on account of the death of the former ; and this operation would have to be repeated as often as an executor or administrator, or. administrator de bonis non, died without having fully administered the whole estate. It would also in many instances have a tendency to relieve the first executor or administrator, and occasionally the administrator de bonis non, from his responsibility, for and on account of sales made by him of the goods on a credit when the security taken afterwards failed, or for having taken anew security, payable to himself for debts owing to the estate; because if after such acts of the executor or administrator, he dies, and the collection of these moneys be taken from his representatives, who certainly in justice ought to have the collection of them, if the estate they represent is to be held responsible for them, and to be committed to the care and direction of the administrator de bonis non,-and it turns out afterwards that the moneys cannot be recovered on account of the insolvency of those who were bound to pay, it may be difficult, if not impracticable often to ascertain through whose default it was that the loss to the estate has been produced; whether it was'owing to the insufficiency of the security at the time it was taken, or want of vigilance and attention on the part of the administrator de bonis non, in collecting it; and as often as this change is made the difficulty will be increased. Besides it would be taking the completion of an act of administration commenced, out of the hands of the representatives of the deceased executor or administrator, who generally being legatees or next of kin, and therefore entitled to a portion, if not the whole of the estate after payment of debts, may well be presumed to feel such an interest in the matter, as to make them use all possible vigilance in looking after every thing, where the slightest neglect, want of attention, or even want of address, might cause a loss to fall upon the estate of such executor or administrator, and putting it under the direction of the administrator de bonis non, who may have no interest in saving the estate of the first executor or administrator from loss, further than to avoid the appearance of gross or culpable negligence on his own part.

Such a change would also dispense with what I consider a salutary rule, and one now well established in respect to the payment of costs by an executor or administrator, which is, that wherever he brings an action in auter droit, that is, founded upon a transaction which arose in the lifetime of the testator or intestate and fails, he shall not pay costs, but if for a cause to which he himself was a party, although the fruits of the suit if successful would be assets when recovered, yet if he fails he shall pay the costs out of his own pocket. The only authorities against this rule are the cases of Bull v. Palmer, 2 Lev. 165. b. Mason v. Jackson, 3 Lev. 60., and Cockerill v. Kynaston as reported in 4 T. Rep. 281., with the dictum of Mr. Justice Buller in King v. Thom, 1 T. Rep. 489, but it is sustained by the following cases; Atkey v. Heard, Cro. Car. 219. Jenkins v. Plume & wife, 1 Salk. 207. S. C. 6 Mod. 91. 181. Harris v. Hanna, Rep. Temp. Hardw. 204. Pauler v. Delander, Andr. 357. Nicolas v. Killigrew, 1 Ld. Raym. 436. Blackway v. Betton, 2 Shaw, 342. Worfield v. Worfield, Latch, 220. Anon. Ventr. 109, 110, as also by the reason assigned for it; which is, that not being privy to the original transaction, he cannot be presumed to know exactly what the case may turn out to be upon investigation, and therefore shall not pay costs, but on the other hand where he is a party to it and therefore must be presumed to know all about it, he will be held to act upon his own responsibility and not to saddle the estate with the costs of the suit in case of failure. See Yelv. 168. Hayworth v. David, Cro. Jac. 229. Grant v. Baily, 12 Mod. 440., and Jenkins v. Plume, 1 Salk. 207, and Justice Lawrence in Cowell v. Watts, 6 East, 412. In the case of Bolard & wife v. Spencer, 7 T. Rep. 358, Lord Kenyon says, “ the rule has, been long settled, that when an executor or administrator brings trover on his own possession, alleging the conversion after the testator or intestate’s death, and fails, he must pay the costs.” He then further says, “ there must be some mistake in the case of Cockerill v. Kynaston.” See Ld. Ellenborough in Henshal v. Roberts, 5 East. 154. Lawrence Justice in Cowell v. Watts, 6 East, 412. It would be unreasonable to adhere to this rule, and to make the estate of the first executor or administrator responsible for costs while his representatives are deprived of all power, control or management of the suit which is given to the administrator de bonis non to direct and manage as he pleases.

It is, however, objected in the present case, that the administration bond taken under our intestate law of the 19th of April, 1794, is of different import, or at least has been adjudged to have a different effect in Pennsylvania from the administration bond given in England in pursuance of the statute of distribution of 22 and 23 Car. 2. c. 10. Our bond, the form of which is given in the act of assembly of 1794, is almost a literal copy of the form prescribed by the statute of 22 and .23 Car. ch. 6.10, and there is therefore no reason in this particular why the effect of such bond with us should be different from what it is in England. But it is said that it has been adjudged in England that the creditors have no interest in such bond and can claim no benefit from it, whereas it has been determined in Pennsylvania that they have. No doubt the law is so in Pennsylvania. Indeed, by a supplement to the intestate act of 1794, passed the 4th of April, 1797, a mode of proceeding by creditors upon administration bonds against the principals and sureties, is expressly provided for by the second section of the act. And it is also true, that for sometime after the statute of 22 and 23 Car. 2. came into operation, it was held by the courts in England that the ordinary could not assign the bond to creditors, and that the non-payment of debts, however sufficient the assets might be for fhat purpose, %vas no breach of its condition. See Archbishop of Canterbury v. Wills, 1 Salk. 315-16. Greenside v. Benson, 3 Atk. 249-252. Baker v. Demarasque, 2 Atk. 66. Wallis v. Pipon, Ambl. 183, and Ashley v. Bailie, 2 Ves. 370, where Sir John Strange, master of the rolls, acknowledges, that it has been so decided, but says that he cannot see upon what ground. However, in the ease of the Archbishop of Canterbury v. House, Cowp. 140, decided in 1774, unanimously by the King’s Bench, it was held that a creditor had a right ex debito Justitice as well as the next of kin to sue upon an administration bond in the name of the Archbishop or his ordinary. This I believe has been considered the law ever since in England; so that it would appear that we have not only borrowed from there the form of our bond, but the effect and construction given to it in that country before our revolution, and at the time of the passage of our act on the same subject. No argument therefore can be drawn from this source in favour of the plaintiff in error, although I think it furnishes one against him; because we have seen from the cases and authorities referred to, that the administrator de bonis non can claim nothing under and by virtue of the administration bond since the statute of 22 and 23 Car. 2. that he could not have claimed a right to before; and why should it be different here ? I confess that I can see no reason.

In the last place the acts of assembly of the 27th of March, 1713, 1 Smith’s Laws, 81, and of the 4th of April, 1797, 3 Smith’s Laws, 296, have been referred to, and relied on, by the counsel for the plaintiff in error; and it has been urged that although this case is not thereby expressly provided for, yet they show how far a preceding executor or administrator, whose letters of administration have been revoked, or who has been dismissed from the administration by an order or decree of the Orphans’ Court, may be and is made responsible to his successor for every thing which came to his hands, as executor or administrator; that the present case, if not within the letter of these acts is at least within their spirit, and that the rights of the administrator de bonis non ought to be ascertained and regulated by the same principles, as they allege there is.the same reason for it in the one case as there is in the other. The second section of the last of these two acts has been dwelt on more particularly; and it has been contended that inasmuch as that section in case of an executor or administrator being dismissed by a decree or order of the court, authorises the court to order him “ to deliver over and to pay to the successor all and every the goods, chattels, rights, credits, title deeds, evidences, and securities, which were of the decedent, and which came to his, or their hands, and remain unadministered, and to account with the said successor or for all and every the goods, chattels, rights and credits which shall have been previously administered, and pay over the balance which shall remain due from him or them to the said successor, in such manner and time as the said court shall, upon an examination and confirmation of such account (to be had according to the usual course of proceeding in case of accounts of executors and administrators settled in such courts), award and order,” the courts ought, in conformity to the principle therein manifested, to extend the rights of the administrator de bonis non, so as to give him every thing which the courts by the provisions of this section are authorized to order a dismissed executor or administrator to pay, deliver over, and account for, to his successor. It is very certain that before the passage of these acts of assembly the administrator de bonis non could lay no claim to any part of the estate which had been administered, altered, or converted, that did not remain in specie, by the first executor or administrator. It appears to me that neither of these acts embrace the case of an administrator de bonis non. His case was provided for, and his rights defined and established by the law as it then stood, but these acts were intended to provide for and apply a remedy to certain cases where none, or at least no adequate one, existed before. These cases intended to be provided for were, when letters of administration had been granted without bond and sureties being given, when sureties had been taken, but were insufficient, or when the executors or administrators of the decedent were wasting or mismanaging the estate. These are the only cases mentioned in these two acts, and I think it is impossible to make it out that the appointment of an administrator de bonis non, falls within any pf the cases described in these acts. An administrator de bonis non, is not appointed because his predecessor had not given bond with sureties, or because, though he had given the bond and sureties, yet they were not sufficient, or because he had wasted or mismanaged the estate, or because his estate and his representatives are not sufficient, and to be trusted with making good the amount of all that was administered or wasted, but because the first executor or administrator is dead, and there is therefore no one in being who by law has any power or right to take charge of that part of the estate which remains in specie and unadministered. It is obvious that it was impossible to remedy the evil intended to be provided for by these acts without taking every thing belonging or relating to the estate out of the hands of the dismissed executor or administrator. The probability of loss being sustained by or through him if suffered to continue in office was the very reason and ground of dismissing him. This is in no wise applicable to the case of appointing an administrator de bonis non, so that he is neither within the letter, reason or spirit of these acts. I however think, notwithstanding, that the second section of the last act has a pretty strong' bearing upon the present case, but against the plaintiff in error. I consider it a strong demonstration on the part of the legislature that they considered the law in the case of an administrator de bonis non, and what he as such was entitled to, the same as I have laid it down in this case, otherwise if they had believed it to be such as the counsel for the plaintiff have contended for here, it would have been sufficient in so many words to have authorized the Orphans’ Court upon the cause therein mentioned for that purpose being shown or proved, to dismiss suc.h executor or administrator, and to appoint an administrator de bonis non, with all the rights, powers, and privileges of such. We must infer, however, that they were of opinion that this would not have been sufficient to attain the end in view, and therefore they expressly authorized the court to order the dismissed executor or administrator “ to account with his successor for all and every, the goods, chattels, rights, and credits which shall have been previously administered, and to pay over the balance,” &c. as well as the unadministered goods, &c. Now it is impossible to make sense out of this part of the section which speaks of the goods, &c. previously administered, unless they are understood in the technical sense de bonis non administratis, and as used in the commission granted to the administrator de bonis non; for if they were to be understood as meaning goods, chattels, rights and credits, which had been previously and fully administered, as it was contended for by the plaintiff in error’s counsel, and that all which were not fully administered must be accounted for to the administrator de bonis non, there could be no such balance from the administration of them in the hands of the dismissed executor or administrator as is there mentioned and directed to be paid over to the successor.

The plaintiff in error was not entitled to maintain his claim in the court below against the defendants, and the judgment of that court is therefore affirmed.

Judgment affirmed.