43 Md. 127 | Md. | 1875
delivered the opinion of the Court.
The main question presented by the demurrer in this case is, whether an action at law will lie for a legacy against the administrator of an executor, where the latter has wasted or converted to his own use, the assets of his testator ? Although an action at law may be maintained for a legacy where the executor has assented to the legacj1, or promised to pay it, or upon the administration bond after the lapse of thirteen months from the date of the grant of letters testamentary, yet in all other cases a general pecuniary legacy can only be recovered by a proceeding in equity. Decks vs. Strutt, 5 Term Rep., 690; Kent vs. Somervill, 7 G. & J., 268; State, use of Thompson vs. Wilson, 38 Md., 343; Turner, Adm’r of Wilder vs. Egerton, 1 G. & J., 434; Williams on Executors, 1932, 1933. It is not alleged in the declaration in this case, nor is there any proof that the executor ever assented to the legacy claimed. But it is contended that this action can be maintained by force of the Statutes of 30 Charles II, chap. VII, and 4 and 5 William and Mary, chap. XXIV, which were held to be in force in this State, by the decision of this Court in Sibley vs. Williams, 3 G. & J., 52. The first of those Statutes is entitled, “An Act to enable creditors to recover their debts of the executors and administrators of executors in their own wrong,” and it enacts “that all and every the executors and administrators of any person or persons, who as executor or executors in his or their own wrong, or administrators, shall from and after the first day of August next ensuing, waste or convert any goods, chattels, estate or assets of any person deceased, to their own use, shall be liable and chargeable in the same manner, as their testator' or intestate would have been if they had been living.” By the 4th and 5th
.Finding no error in the ruling of the Circuit Court upon the demurrer, the judgment appealed from will be affirmed.
Judgment affirmed,.