§ 9542 — Judgments against executor or administrator

(a) Every judgment against an executor, or administrator, as such, shall be a judgment of assets, and shall not charge the executor or administrator absolutely, but only in case the executor or administrator, at the time the judgment is rendered, or before, or afterward, has assets which, according to law, ought to be applied to the cause of action.

(b) If an execution on a judgment against an executor or administrator is returned unsatisfied for want of assets, the creditor may sue out a scire facias, upon a suggestion of waste, against the executor or administrator; and if the defendant does not appear and show sufficient cause to the contrary, the defendant shall be deemed guilty of waste and shall be personally liable for the amount of the original judgment, with interest and costs, and judgment and execution shall be awarded accordingly, as for the defendant’s own debt. No such scire facias shall be issued until after the lapse of 1 year from the grant of letters of administration to the defendant.

(c) In all cases in which a question of assets shall be determined, that question shall be tried by the justice, and not by referees.

Legislative History

Code 1852, §§ 2094-2096; Code 1915, § 4016; Code 1935, § 4502; 10 Del. C. 1953, § 9546; 69 Del. Laws, c. 429, § 8 ; 70 Del. Laws, c. 186, § 1