Jenkins v. Wood

140 Mass. 66 | Mass. | 1885

W. Allen, J.

It having been decided that the special statute of limitations is a bar to the action on the judgment against the executor, (Jenkins v. Wood, 134 Mass. 115,) the plaintiff now attempts to hold the defendant personally as the judgment debtor. It is argued that the bond given by the defendant to pay debts and legacies implies a promise to pay debts and legacies, and renders the defendant liable for them as debtor. But this is inconsistent with the liability of the defendant as executor. That he is so liable, and that the bond is collateral to that liability to secure its enforcement, is too obvious and well settled to be questioned. See Jones v. Richardson, 5 Met. 247; Colwell v. Alger, 5 Gray, 67 ; Holden v. Fletcher, 6 Cush. 235 ; Troy National Bank v. Stanton, 116 Mass. 435; Jenkins v. Wood, ubi supra.

The debt was due from the testator, and the statute prescribes the only mode in which the executor can be held personally liable for a debt of his testator. Pub. Sts. c. 166, §§ 5-10. The St. of 1783, c. 32, § 9, provided, in relation to the estates of deceased persons, “ that all writs of attachment and executions "shall run only against the goods or estate of the party deceased, in the hands of executors or administrators,” and that the proper goods or estate of an executor or administrator should not be attached “ or taken in execution for the debts or legacies of the testator or intestate, but upon suggestion of waste, founded on a return made by the sheriff, that he could not find any goods or estate of the testator or intestate; in which case a writ, commonly called scire facias, shall be issued out of the clerk’s office of the same court, against such executor or administrator, which writ, being duly served and returned, if the executor or administrator make default of appearance, or coming in, shall not show cause sufficient to the contrary, execution shall be adjudged and awarded against him of his own proper goods and estate, to the value of such waste, where it can be ascertained, otherways for the whole sum recovered; and for want of goods or estate, against the body of such executor or administrator.” The reenactments of this statute down to the Public Statutes, though dividing it into separate sections and changing the phraseology, have not changed its meaning. This excludes the anomalous action of debt on a judgment against an executor or administrator on a suggestion of waste, which was sustained in England, but has never been adopted in this State. See Wheatley v. Lane, 1 Wms. Saund. 239; 3 Wms. on Exrs. (6th Am. ed.) 2097, seq. The mode prescribed by the statute is the only mode in which an execution on a judgment against an executor for a debt of his testator can be issued against the executor personally. What will be evidence of waste to charge, under its provisions, an executor who has given bond to pay debts and legacies, is a question which does not arise in the case before us, and which we have not considered.

Judgment for the defendant.