
    [Lancaster,
    May 23, 1825.]
    FRITZ, Executrix of CHRISTMAN, against EVANS, Administrator de bonis non cum testamento annexo of FRITZ.
    
      IN ERROR.
    
    ín a suit against an executor, the heirs of the testator, to whom land has descended, may be permitted to appear, and take defence in the name of the executor; and that though the suit is depending before arbitrators.
    They may also appeal in right of, and in the name of the executors from an award of arbitrators. ■
    If it appear on the record, that the executor originally sued, was dismissed, and an administrator de bonis non substituted, against whom there are a verdict and judgment, such change of the defendant will, on error brought, be presumed to be by consent of parties, and the judgment is regular.
    Writ of error to the Court of Common Pleas of Berks county, in which the plaintiff in error, was plaintiff below.
    This suit was originally an action on the case, brought by Henry Christman against Isaac Christman, executor of Frederick Fritz, deceased. It was arbitrated on the 29th of November, 1822. On the 17th of January, 1823, “on motion of Frederick Smith, attorney for the legal heirs of the said Frederick Fritz, deceased, it being suggested to the court that the legal heirs, namely, John Laws and wife, Peter Fritz, Frederick Fritz, (and others mentioned,) are interested in this action; they are by the court permitted to be mentioned on the record as such, and to take defence in the same.” The arbitrators on the 22d of January, 1823, made an award in favour of the plaintiff, for the sum of four thousand eight hundred aud thirty dollars and ninety-six cents, and on the 10th of February 1823, Peter Fritz, one of the heirs of Frederick Fritz, filed a paper in the prothonotary’s office stating, that he came to the prothonotary’s office, and on behalf of himself, and the other heirs, and the executor of Frederick Fritz, claimed an appeal, and offered to make the affidavit, and enter into recognizance, with sureties, that the defendants should pay all the costs that might accrue, in consequence of said appeal, together with the per diem allowance to the plaintiff, but declined entering into recognizance, for the payment of the sum awarded. On the 17th of March, 1823, the court granted a rule on the plaintiff, to show cause, why an appeal should not be entered, nunc pro time, and on the 27th of the same month, ordered “ that an appeal be entered in the name of Isaac Christman, executor of the last will and testament oí Frederick Fritz, deceased, so that the case may be tried on its merits,” which was accordingly done, the oath being made by Peter Fritz. The defendant pleaded non assumpsit and payment, and the cause was then put at issue. On the 22d of November, 1S23, the death of Henry Christman, was suggested on the record, and Sarah Fritz, his executrix, substituted as plaintiff. On the 11th of November, 1824, the renunciation and dismissal of Isaac Christman, executor of Frederick Fritz, was suggested and Evan Evans, administrator of the said Frederick Fritz, with the will annexed, was substituted. The cause being tried on the same day, a verdict and judgment, were rendered in favour of the defendant.
    The errors assigned were the following:
    1. The court erred in permitting the legal heirs of Frederick Fritz, deceased, to be mentioned on the record, and take defence in this action.
    2. The court erred in directing the appeal to be entered, nunc pro tunc, on the 27th of March, 1823.
    3. The appeal was not entered agreeably to the order of the court; inasmuch as it was entered by Peter Fritz, in behalf of himself, and the other heirs and legatees of Frederick Fritz, deceased, and not in behalf, or in the name of Isaac Christman, executor of Frederick Fritz, deceased, according to the direction of the court.
    4. No appeal was ever legally entered from the award of the arbitrators.
    5. There is an error in the record returned; the court not having decided, that the appeal should be entered nunc pro tunc, but having allowed an appeal generally. If this variance should be considered material, the counsel for the plaintiff in error reserve to themselves the right of having a certiorari issued.
    6. The court had no right to substitute Evan Evans as a party in this cause.
    
      Buchanan, for the plaintiff in error,
    on the first error assigned, made two points: First, had the court power at common law, to admit the heirs as parties. Second, had they power, under the arbitration law?
    1. The executor represents the testator, and no part of his power, can be taken from him. It is difficult to perceive, wherein this kind of interference will end, if every person interested has a right to become a party. The executor has a right to plead plene administravit, or a want of assets. 2. The cause was out of court, and before arbitrators, when the order for admitting the heirs was made. When the jurisdiction of the arbitrators has attached, the cause is out of court. When the award was returned, it was against the executor alone, and he alone should appeal. He could appeal, without making oath or giving security, 5 Binn. 850, but by this proceeding, there is an attempt to transfer this privilege, to other persons, namely, the heirs.
    2d Error. The court erred, in ordering an appeal nunc pro tunc, on the 27th March, 1823, two months after the award was filed. Such an order might have been made, if the party entitled to the appeal, had demanded an appeal, and offered to comply with every legal requisite, within twenty days. But that was not the case. There was no evidence, of any offer made by the defendants, except a paper signed by Peter Fritz, on the 10th of February, 1823, and filed in the office of the prothonotary. Besides, it does not appear that the prothonotary refused to enter the appeal. The paper filed by Peter Fritz, is no part of the record. The court had no right to order an appeal to be entered, after twenty days, unless demand was made, within twenty days, by the party, or his agent, or attorney. 5 Sm. Laws, 125. Peter Fritz, was neither agent nor attorney of the executor: he had no right to appeal, on behalf of himself or the co-heirs, and even if he had, he was bound to enter into a recognizance, for the payment of the debt, &c. in ease the judgment were affirmed. If a privileged person be joined, with one not privileged, the privilege is lost. Whart. Dig. 512.
    3d Error. The order of the court was, that the appeal should be entered in the name of the executor, but it was not so entered. The oath of belief that injustice had been done, was made by Peter Fritz, and the appeal entered, in the name of himself and the co-heirs.
    4th Error. The court had no right, to substitute Evan Evans, administrator de bonis non, cum testamento annexo, of Frederick Fritz. By the act of the 13th of April 1791, 3 Sm. Laws, 30, where either party dies, before judgment, there may be a substitution: and the court had no right to make any substitution, except in cases authorized by act of assembly.
    Suppose the executor had been guilty of a devastavit: he could not withdraw himself from the action by resigning. If consent to this substitution be alleged, we deny that consent was ever given.
    
      F. Smith, and Cond.y, contra.
    The heirs of Frederick Fritz, finding a suit for six thousand 'dollars, brought against the executor, Isaac Christman, by his brother, Henry Christman, desired to be permitted to defend the suit, as persons interested, in the name of the executor) the)? did not desire to be, nor were they, substituted as parties. This was done as soon as possible. The action was commenced, at November Term 1822, and the heirs applied to the court, on the 17th of January, 1823, and the court decided, that the appeal should be entered in the name of the executor. The defendant was left at liberty?-, to defend himself by such pleas and evidence as he chose. The executor entered the plea of non assumpsit himself, ánd he might have entered any other. The heirs had reason to suspect, that their interest would not be protected, and they bad a right tb come in and defend it. Why might not the heirs of Frederick Fritz appeal? This court has always favoured appeals, and construed the arbitration act liberally, in order to support them. 5 Binn. 462. Executors may appeal without payment of costs. 5 Binn. 208. One defendant may appeal, notwithstanding the other objects. 1 Serg. & Rawle, 492. The oath may be made, by a nominal plaintiff. 2 Bro. Rep. 91. If the costs taxed fay the prothonotary are paid, the appeal stands, though more costs are due. Fraley v. Nelson, 5 Serg. & Rawle, 234. In 3 Serg. & Rawle, 311, new bail was substituted, in order to make the first bail, a witness. Anderson v. Fuller, 3 Serg. & Rawle, 1.
    The heirs at law, were in truth parties, because the judgment would affect the land in their possession, and if necessary, may be considered agents of the defendant, especially as the defendant never objected. Further: going to trial, was a waiver of any objection to the appeal. Joining issue waives defects. 1 Bro. Rep. 95. So Relaying for two years, to move to quash the.appeal. Mayse v. Jacoby, 8 Serg. & Rawle, 526. So appearance and pleading. Zeigler v. Fowler 3 Serg. & Rawle, 238. So an acquiescence for twelve months, and preparing for trial. Ibid. 364. The plaintiff here took the chance of a verdict in his favour. The same remarks apply, to the objection of the substitution of the administrator. 1 Bro. Rep. 95. 5 Binn. 340. 1 Yeates, 326.
    
      Hopkins, in reply.
    1. The court had no right to admit the heirs of Frederick Fritz to come in and make defence. They were admitted without evidence, and without calling on the plaintiff to show cause. The creditor, the plaintiff in the cause, has a right to carry on his suit against the executor, who represents the testator, and is possessed of the whole personal estate. The executor ought not to be responsible, if others are allowed to interfere with the defence: Besides, it is a reflection on the character of the executor. The Orphans’ Court alone had power to remove the executor Tor misconduct. The cause being before arbitrators, the Court of Common Pleas had no right to make an order in it. The legatees are interested as well as the heirs. Indeed, as there was a will, it does not appear that the heirs had any interest. I do not deny that, a proper ground being laid, the court might permit persons other than the defendant on record to make defence.
    
      2. The arbitration act gives no authority to Peter Frits, one of the heirs, to act for the executor, against whom the suit was brought. The executor may perhaps know the debt to be just, and not wish to appeal. The heirs were ho ’agents for the executor, nor did they pretend to be so. There is no evidence that the prothonotary refused to enter any appeal offered to him. If he had refused, there should have been an application to one of the judges for an order to enter the appeal, and this might have been done within twenty days.
    3. The court had no power to order an appeal to be entered on the 27th of March, more than sixty days after the expiration of the twenty days allowed by law for an appeal. This court will examine the reeord and see what ground appears for orders made by the Court of Common Pleas. Besides, the appeal was not entered in the name of the executor, aeeording to the order of the court. It is entered expressly in the name of Peter Frits and the other heirs, and the oath for the appeal was taken by Peter Frits. In the cases cited against us, the appellee might have had the appeal quashed on motion; but, instead of doing so, he went on to plead. But we could do no such thing, because the court ordered the appeal to be entered, and after that we had no will, but were obliged to go on with the cause.
    4 There has been a mistrial of this cause. Evan Evans was improperly and irregularly placed on the record as defendant, instead of Isaac Christman, who had resigned and been dismissed from his charge of executor. But it does not appear that he was dismissed by the Orphans’ Court; perhaps the Court of Common Pleas dismissed him. But suppose the suggestion well made, our act of assembly authorizes no substitution, but in case of death. Nor does the act authorize such substitution, unless a party sues or is sued in his own right. Act of the 13th of April, 1791, sect. 8, Purd. Dig. 20. The act authorizing the Orphans’ Court to dismiss an executor who resigns, was made subsequent to the act of the 13th of April, 1791; and on the 24th of March, 1818, Purd. Dig. 209, another act was made, permitting a substitution in the place of an executor or administrator plaintiff who dies or is removed. In 8 Serg. & Rawle, 56, there is a judicial exposition of this act.
   The opinion of the court was delivered by

Gibson, J.

This suit was originally brought by Henry Christ-man against hi? brother, Isaac Christman, who was the executor of Frederick Fritz, their sister’s husband; and this sister, on the death of Henry, has become the plaintiff in the action, as his executrix, and, as such, prosecutes it apparently against her own interest. The real defendants are the collateral heirs of Fritz, who are interested in respect of the land. It is possible, therefore, that the suit may have been instituted for the benefit of the widow of Fritz, and that the recovery before the arbitrators may have been by collusion. While the matter was pending before the arbitrators, these heirs of Fritz obtained leave of the court to suggest their interest on the record, and to take defence in the action in the name of the executor; and this is the first error which has been assigned.

By the English common law, when the heir is bound for the debt of his ancestor, the action lies directly against him, and not against the executor, who has nothing to do with the land, which is assets only in the hands of the heir. In Pennsylvania, lands being, in all cases, assets for the payment of debts, only the executor can be sued, and the land may be sold on a judgment against him in the hands of the heirs. That this is contrary to the plainest principles of natural justice, must strike the senses of the most superficial ’observer. The executor necessarily has no interest in setting up a defence beyond what may serve for his personal protection, which requires nothing more than to show that he has fully administered the personal estate; and when he has shown this without more, the plaintiff may still have execution of the lands in the hands of the heirs. As it is not necessary to his safety to resist the demand on its merits, collusion with the plaintiff may, and frequently does, take place. A judgment against the executor for a pretended debt, is often made an instrument to divest infants of their land, and to deprive them of the shield with which the common law has covered them. This, no doubt, is always done with a view to the advantage of the infant; but the money for which the land has been sold is, for the most part, wasted by an improvident application of it to the infant’s maintenance and education, or lost by the insolvency of those who have had the handling of it; so that the infant, on coming of age, finds himself pennyless. ' Why, then, should not the heirs, who are often the only parties in interest, be allowed to appear and set up a defence to the demand on original grounds? It seems to me not only that they ought to be heard when they do appear, but that their land ought not to be affected by any proceeding to which they were not made parties by a notice to come in and plead either collaterally or in the name of the executor. The latter, however, as the law is now settled, can be effected only by legislative provision, the want of which we may lament, but cannot supply. But the most obvious principles of justice and policy require that where the heirs do interpose, their right to defend in the name of the executor should be liberally sustained. The owner of a bond by an equitable assignment, is not the legal plaintiff in a suit on it; yet he is permitted to conduct the suit, and the legal party, who is a mere trustee, would he restrained from doing any act to his prejudice. By introducing the same relation between the heirs and the personal representatives of a decedent, the defence is not taken out of the hands of the latter: they may urge any defence of which they might avail themselves separately; and to this the interposition of other parties in interest, presents no impediment. Nothing more was done here. The executor was left to defend his own interest as he thought proper, and was precluded from prejudicing the interests of others by making no defence at all. The plea was entered in the name of the executor, and was sufficiently comprehensive for a full defence on the merits; and if he had wished to add any other plea, which disaffirmed the admission of assets arising from a plea to the merits, it would have been accorded to him. He was, however, content to go to trial without such additional plea, and was actually discharged by the verdict; and how this can be assigned for error by the plaintiff, who certainly was not prejudiced -by it, I know not. There is no force in the objection, that the interest of the heirs was suggested on the record when the cause was before arbitrators, and, consequently, when it was removed from the jurisdiction of the court. The entry was, in strictness, no part of the record, but only a memorandum, like the marking of an action for the use of a third person, to disclose an equitable title in the heirs, to have an appeal in the name of the executor, as soon as the award should be filed with the prothonotary.

It is contended, that the heirs had no right to appeal, and that there is no evidence, but the paper filed by Peter Fritz, that they-ever demanded an appeal; but it is conceded, that where an appeal has been improperly denied, the court may direct it to be entered nunc pro tunc, after the expiration of the twenty days allowed by law. What has been said in respect of the first error assigned, is also applicable to this. For all the purposes of taking and prosecuting an appeal, Peter Fritz had a right, either in his own behalf or that of the other heirs, to avail himself, not only of the name, but of the character and privileges of the executor; and, that he did so, the paper filed by him at the time was ample evidence.

The third, fourth, and fifth errors are not supported in point of fact.

It appears that after the appeal was entered, Isaac Christman, the defendant, surrendered his office of executor to Evan Evans, who took out letters of administration de bonis non, with the will annexed, and,was substituted as the defendant in the cause: and this is assigned as the sixth error. By the third section of the act of the 4th of LLpril, 1797, an executor or admistrator who has settled his account as far as he has administered, may, with the leave of the Orphans or Register’s Court, be dismissed from his office and surrender the residue of the estate in his hands to the person who shall be appointed to succeed him. Whether such surrender and dismission could be pleaded to an action, which had been instituted against the executor before his dismission, particularly if he had by a former plea admitted assets to be in his hands, or whether the plaintiff might be compelled to have his successor substituted as defendant in his stead, are questions which it is at present unnecessary to decide. I know of no act of assembly which authorizes such substitution, but it .cannot be doubted that it might take place by the agreement of the parties. How did it take place here? The entry on the record is, — “ The renunciation and dis-mission of Isaac Christman, as executor of the last will and testament of Frederick Fritz, deceased, suggested, and Evan Evans, administrator de bonis non of the said Frederick Fritz, with the will annexed substituted.” Now this does not necessarily import, that the substitution was by order of the court. Under the act of the 13th of tdpril, 1791, the practice has been to suggest the death of the party, and where the executors or administrators wished to become party, to have their names entered on the record without the judgment of the court; and in analogy to the practice under that act, there is no doubt that the same course was pursued here. If, then, the plaintiff was dissatisfied with the substitution, it was his proper course to apply to the court to have the name of Evan Evans stricken off; and his not having done so amounts to an acquiescence. Before there can be error, it should appear the court compelled him to accept of Mr. Evans as a party; but there is nothing in this record to show, that he did not proceed to trial with the present defendant voluntarily; and having taken his chance for a verdict, it is too late to say there was a mistrial.

Judgment affirmed»  