setts provincial trustee act, she being then sole. Pending this action Story sued her as executrix, and reduced the debt to a judgment. Then the plt. got judgment against Story, and against her as trustee by default. She married Clark, and now the plt. brings scire facias against Clark and wife. Judgment for the plt., that he have execution against her and her husband for the damages and costs on these grounds. First. Though said executrix owed Story on judgment, yet this debt was thus attachable, he having no remedy against her, but a future action on his judgment against her for the debt she owed him. Quære, if he had been entitled to an execution on his judgment. Second. She was trustee to Story, though she only as executrix owed him, that is, in âuter droit; it being well understood that the estate she represented was fully solvent. Quære, if she had left the question of insolvency open. CH. 29. Art. 8. § 6. In this case it was held, that a debt due to the estate 3 Wils. 297, of the plt's. intestate, or due to the plt. in âuter droit, might Fisher, adm. be attached on foreign attachment, and so taken to pay a debt that estate owed to a creditor of it. v. Lane & al. 1793, Essex, adm. 7. A debt indirectly sold by an administrator. In this Mass. S. Jud. case a debt of £105 was due to Thomas Reddin, the plt's. Court, Nov. intestate, from Moses Hawkes, the deft's. intestate. Oct. 7, Reddin, adm. 1788, a former administrator on said Thomas Reddin's estate v. Shute, sold his debt to Shute by deed, who then was not administrator of, or any way concerned with, Moses Hawkes' estate, so then could not take a release of it. But afterwards Shute took administration on Hawkes' estate, and when sued as his administrator, as administrator of the debtor by the administrator de bonis non of the creditor, pleaded this deed as a release of the debt, and had judgment. And the court held, first, that though Shute was not capable of a release Oct. 7, 1788, when the deed was made, being a stranger to the debt and the debtor's estate, yet afterwards becoming his administrator he might plead the deed as a release by relation; though objected that a deed which was no release when made, and took effect, could not by subsequent matter or facts be turned into a release. 2d. That if there be proof a deed was signed and sealed, possession of it in the grantee is evidence of a delivery, unless it be proved he came fraudulently by it. 8. In this case it was decided, that if A give a note to B Mass. S. Jud. and die, and A's administrator make payments on it to the Court, Suffolk, Wells v. promisee, before A's estate is rendered insolvent, not endorsed, Gray, admr and the whole note is allowed to B by the commissioners, and an order of distribution for the whole, and B brings an action on this order, A's administrator may prove these payments, and CH. 29. Mass. S. Jud. Court, Nov. 1797, Pool v. - Pool. Mass. act, --1 Salk. 79.-3 T. R. 613. thereby lessen the sum ordered by the probate decree, to be paid to B. The conclusion from this case is, that the probate decree is not conclusive as to the debt decreed; for if it were, this debt, so decreed, could not have been reduced by this evidence. But this is the only case of the kind recollected. 9. The court held that if an annuity be given to A, to be paid by the devisees in the will, the action must be brought against them, and not against the executor; and the declaration must state the devise and annuity, that the devisees accepted the estate devised to them, subject to the annuity, &c. and that the executor is not liable. $10. Contracts when there is a trust. By this act, the Mar. 10,1784, treasurer of proprietors of lands in common and undivided, may sue for all debts due to them. If A take a bond in trust for B, it is not assets in his executor's hands. The plt. may take a bond in trust for party's wife and sue it. And if a bond be made to a Dean, Bishop, Parson, Vicar, &c. their executors shall sue it. 1 Mass. R. 35, Henshaw, judge &c. v. Blood & al. 204, Prescott, judge, v. Tarbell. 1 Mass. R.1,4, Goldv. Eddy, admr. 1 Mass. R. 200, Dana, executrix, v. Prescott, admr. 1 Mass. R. 502, Blossom § 11. Administration bond, the extent of it. In this action the court decided, that an executor or administrator is not bound by his bond to inventory the real estate; for though by the statute the administration is on the goods and estate, yet the condition of the bond is to return an inventory of the "goods and chattels, rights and credits" of the deceased. See also the chapter respecting Insolvency. This condition is not consistent with our statute of March, 1784; for that expressly requires an inventory of the whole estate. Nor is an administrator or executor entitled to costs for travel and attendance, before he actually comes into court to prosecute or defend the suit commenced by or against his testator or intestate. By the act of 1818, the real estate is inventoried. 12. Nor can executors or administrators refer before the judge, but by statute. In this case the court held that the reference entered into before the judge of probate, by the executrix, as to her demand as executrix, against the deceased's estate, was void, and generally" that the judge of probate had no authority to allow a reference of any demand which an executor or administrator, as such, has against the estate of the testator or intestate." In this case, Anna Dana, the appellant, was executrix of the will of Samuel Dana, and he was executor to the will of Jno. Bulkeley, jr. and the demands referred, were the accounts of said Samuel, as such executor, with said Bulkeley's estate. 13. In this case it was decided that if after an executor v. Goodwin, is sued, he represents the estate insolvent, he is not entitled to admr. a continuance of course, but must go on to trial if the court think proper, &c. See Insolvency. CH. 29. §14. Held that if an administrator corruptly neglect to oppose illegal claims against an insolvent estate, he is liable to an 2 Mass. R. 80. action by the injured party; but that the probate court cannot Parsons v. reject the report of the commissioners on this ground. Mills. 15. The court decided that if a naturalized citizen die 1 Mass. R. without heirs here, and his administrator have in his hands 292, Dorr's money of his, he will be decreed to pay them into the state treasury. case. 654, Mitchell § 16. Held, if the creditors of an intestate recover judg- 4 Mass. R. ment against his estate in the hands of his executor de son v. Lunt. tort, he cannot extend his execution on the intestate's lands. He is not such an executor as the law intends, when it makes the lands of the deceased liable in the hands of his executor or adininistrator for the payment of debts. 611, Grout v. Chamberlain. 682.-7 T. R. 182.-See ch. Yare v. Gough.--Cro. 1 Salk. 323, Clerk v. 17. No privity between an executor and an administrator 4 Mass. R. de bonis non &c. As where the executor of A's will recovered an erroneous judgment, it was decided that B, an admin- -2 Selw. istrator de bonis non, with A's will annexed, could not have a writ of error; for there was no privity between this executor 190, a. 3. and B, such administrator; and that this judgment &c. recovered by the executor, is no bar to an action to be brought by such administrator for the same cause; for he is a stranger to the judgment; nor can such administrator execute such judgment; nor a succeeding administrator, a judgment recovered by a former one: and the judgment recovered by the executor on a bond, is no bar to an action of the administrator de bonis non, with the will annexed, on the same bond: and that the statute of 17 Ch. II, ch. 8, is not adopted in this state: but quære if not adopted here; for certainly, judgments recovered by former administrators, have been enforced and sued by administrators ne bonis non, and this act is as useful here as in England; and reasons as strong have existed for adopting it Com. D. here, as for passing it there. The effect of this decision is Toller, 447, done away, by a new statute of February 1813, and A. D. 448, 449. 1818. Withers. Admr. G. 18. Held, an administrator may have trover against a 6 Mass. R. stranger, for the conversion of a title-deed of the plt's. intes- 394, 396, Fowle, admr. tate committed in his lifetime; though urged that the heir v. Lovitt. ought to have had the action, for here lands are assets in the hands of the executor or administrator, on a deficiency of personal estate. He defends on eviction &c. 390, Storer 19. A. D. 1768, Jno. Storer died, and Joseph Storer 6 Mass. R. administered and died; plt. took administration de bonis non, admr. v. Stor, on the estate of said John Storer; defts. became administra- er & al. tors of said Joseph Storer's estate, and 1798 settled an admin admrs. 3 Mass. R. 258, Dean v. Dean. istration account of their intestate, as he was administrator of said John, deceased, allowed by the judge, and a balance of $627,14 found due from said Joseph's estate, to the plt. as administrator de bonis non. A decree passed that the defts. pay it to him. ART. 9. The power of a surviving executor to sell lands, &c. 1. In this case, land was devised to be sold, and the money to be divided, &c. but it was not said by whom the sale should be made; and the court decided that a sale made by the survivor of two executors, was good and valid, a fortiori, a sale made by both had been so; therefore executors are the proper persons to sell the testator's estate, ordered to be sold, when no persons in particular are named to make sale. § 2, Held, that an administrator can sell the estate of the intestate, only for the payment of debts he owed at the time of his death. But lands the administrator recovers on mortgage, or takes in execution, may, also, be sold for the payment of the charges of administration; and in granting a license to sell, the court may direct what part of the real estate shall be sold first, as lands not devised, the residuum, &c. Executors exrs. v. Jack administer, ex officio; estate not devised, this is the statute and usage. 6 Mass. R. Hays & al. son, 149. 2 Dall. Rep. 292. 5 Mass. R. 419, the peti admr. ART. 10. Lands sold by executors, to pay debts, the effects. 1. In this action it was resolved that if a testator empower his executors to sell lands for the payment of debts, the purchaser holds them discharged against creditors, otherwise if the powers be to sell to pay legacies. This is the law in Pennsylvania, and is the law in Massachusetts, with, perhaps, the exception, if the land be sold to pay legacies by the testator's will, and then the lands be wanted to pay debts, the proceeds, wherever to be found, would be applied to pay debts, instead of the land; but if the creditor levy on the lands so sold, the levy must be good; for the creditor has his right by law, and it cannot be taken away by the testator's will in favour of leg atees. 2. Held, that an administrator has power to sell a leasetion of Gay, hold estate for ninety-nine years, as personal estate, without obtaining a license from the court, as in case of selling real estate for the payment of debts. Indeed the executor or administrator has of course, a disposing power over all the estate of the deceased whatever, except his freehold estates. Cannot sell real estate twelve years after licensed by court to sell. Mistake of day of sale in the notice is fatal. 15 Mass. R. 326. ART. 11. Administrators how accountable for effects abroad. 1. It is a general principle that an administrator is not accountable (if duly diligent) for choses in action till recovered; nor for goods or effects abroad, and beyond the reach of the laws of the country, till he can get them into his possession. The foreign government where they may be, is not obliged to grant him administration, nor can he sue and recover them in that country, till he there has administration. CH. 29. Art. 13. ston. § 2. In this case the court decided that one domiciled in 2 Mass. R. England and dying there, and his administrator with the will 384, Selectannexed coming into this state, and filing a copy of the will in men of Boston v. Boylthe probate office according to our acts of June 29, 1785, and here taking administration with the will annexed, is not held to account here for the effects he received in England. 3. The testator directed that if certain bequests to his 2 Mass. R. wife should not be sufficient for her support, his executor al. apts. v. 168, Hunt & should sell certain lands for that end. The executor died, Holden. and after his death a stranger supplied her. Held, he had no action against the testator's estate. ART. 12. Where an executor may be sued &c. in his own 10 Mod. 254. name. § 1. An executor may be sued in his own name, on his own promise, to pay the testator's debt at a future time; so for rent or repairs on his own possession, and if named executor, it is but surplusage. But if he be charged as executor, though for non-repairs in his own time, judgment shall be of the testator's goods; for the plt. charges him in âuter droit, and he does not object; then the court, in such case, will give judgment according to the record. lard. 2. Where A is indebted to a feme covert executrix, and 12 Mod. 207, promises payment to her husband, the consideration being for- Yard v. Elbearance, he alone must bring the action; and if the husband die, his executor shall have execution, and it is no part of the testator's personal estate; yet when recovered it is a devastavit in the husband so far as he recovers. grant 2 Ld. Raym. 3. Where a will is not found, and administration is ed to A, and he appoints B, who collects the deceased's debts and pays over to A, the will is found, but the executor cannot wood. sue B for money had and received. ART. 13. Administration void or voidable. § 1. When the question before the judge is, if he have jurisdiction of the subject matter or not, he decides at his peril. If he err and assumes a jurisdiction he has not, his act is void. Therefore, if a 2 Mass. R. judge of probate grant administration more than twenty years 120, Wales, after the death of the intestate, the act or grant is void, and not merely voidable; and this, whether he died before the act of March 9, 1784, was passed, or since; for the probate judge has no power to grant administration but in virtue of that act; and this expressly forbids any administration to be admr. v. Willard, exr. |