5 Rawle 266 | Pa. | 1835
The principal, and indeed as it appears to me the only question worthy of consideration in this case, is, whether executors who have appropriated the assets of the estate to the payment of legacies instead of the debts of the testator, and upon settling their administration account afterwards in the Orphans’ Court have obtained a discharge from their executorship, remain liable notwithstanding, to the creditors for the assets so applied to the payment of the legacies.
It is proper to bear in mind that the discharge of the executors in this case from their office as such, was upon their own application and wish to resign the same; and not because they were found to be wasting or mismanaging the estate, and had failed to give security according to an order previously made upon them by the Orphans’ Court to that effect. The surrender then of their office being voluntary, it seems tó me that they were only required by the act of assembly of 1797, to pay or deliver over to the administrator de bonis non, the residue of the estate which remained in their hands unadministered, and inasmuch as more than a year, the time for which the payment of legacies is suspended by the act of assembly, had elapsed after the death of the testator before the resignation of the executors, it could not perhaps be well said that whatever of the estate they had appropriated to the payment of legacies, although improperly so applied, formed any part of the residue thereof mentioned in the act as remaining in their hands unadministered. Besides, after the expiration of the year, and having paid all the debts within their knowledge against the estate, it was their duty to pay the legacies, if they had assets, upon receiving from each legatee a bond with at least two sufficient sureties, as the law then stood, conditioned for a return of his legacy, or so much thereof as should be wanting thereafter to pay debts subsequently appearing against the estate: so that if the defendants in this case after the expiration of the year, without any knowledge of the plaintiff’s claim, upon receivr ing the requisite bonds and sureties from the legatees, paid to them all the assets remaining in their hands unadministered, they would only be liable to the plaintiff or other creditors giving notice subsequently of their demands, as long as the legatees or their sureties should remain solvent and able to refund. But if an executor, after notice given him of a debt against the' estate, will appropriate the assets to the payment of legacies instead of such debts, hewill.be responsible to the creditor, whether the legatees and their sureties in the refunding bonds continue to be good or not. So if he pay legacies without taking refunding bonds, or without taking such security as shall be considered good at the time, he will be liable for the amount so paid to creditors„if there be any unpaid who shall seek payment afterwards of their debts: because it is a clear violation of
The plea of the defendants as it appears tome amounts to nothing more than plene administraverunt, and would have been bad and insufficient, notwithstanding all the special matter set forth in it, had not the averment to this effect been inserted in the conclusion of it. The defendants might have given in evidence all the special matter stated in their plea, under the plea of plene administraverunt, according to the principles laid down in Brooking v. Jennings, 1 Freeman’s Rep. 150, ca. 171. S. C. 1 Mod. 174. Garter v. Du, Ibid. 13, Ca. 12. Anon. 1 Salk, 313, reported George v. Pierce, 7 Mod. 31. The replication therefore of the plaintiffs which goes to show that the defendants had not properly administered all the assets which came to their hands, baton the contrary had misapplied and wasted the same to an amount more than sufficient to pay the plaintiff’s demand, by paying legacies with them, was an appropriate and pertinent answer to their plea, and if true sufficient to avoid it. Accordingly it is laid down in Packman’s case, 6 Co. 19, that “ if an administrator waste goods and afterwards administration is committed to another, yet any debtee shall charge him in debt, and if he pleads the last administration committed to another,, the plaintiff may reply that before the second administration committed, he had wasted the goods.’r
This principle was also agreed to by three of the judges in Brooking v. Jennings, 1 Freem. 150. Vaughan, Chief Justice, dissenting. In Chandler v. Thompson, Hob. 266, this question was debated, though not decided, but the court say, “ perhaps he (meaning the
Judgment reversed.