
    Swearingen’s executor against Pendleton’s executrix.
    In Error.
    September.
    WRIT of error to the Court, of Common Pleas of Wash- ' mgton county.
    , . In the Court below, it was an action of covenant brought by Ann Pendleton, executrix of- Philip Pendleton, deceased, against Andrew Swearingen, executor of Van Swearingen, deceased-, on articles of agreement, dated April 7th, 1785, which recited that the parties were in possession of certain lands in Virginia, the legal title to which, being contested, it might be necessary that large sums of money should be expended to secure it to them. It was therefore agreed on the part of Swearingen, that he would bear an equal proportion of the expenses incurred, or which might be incurred by 
      Pendleton, in vindicating their title, or in extinguishing adverse claims. To accomplish these objects, it was alleged by the plaintiff, that considerable sums of money had been disbursed by her testator, for the recovery of which this suit was brought.
    
      A, and Bt being in possession, £s tenants in com" mon, of land, the title to JJsJedJamHo” secui-e^wlUcIx cessary toex^^sums of1" money, en-agreement,by „ánTecU<fbeat an equal pro-expenses in-0 curred,or which might be incurred by A, in vindicating their title, or extinguishing adverse claims. A, having had the legal title conveyed to himself alone, it was held, that he might maintain a suit for the recovery of B’s moiety of the expense, without having previously conveyed to B, a moiety of the land; but as a court of chancery would compel A, to convey the legal estate, before he could be permitted to recover the money which B had agreed to pay, in contemplation of obtaining a legal title, a court of law in Pennsylvania, will stay the execution, until the legal estate in a moie* py of the land be conveyed to B.
    An executor is liable in respect to all the assests which come into his hands, whether they arise in «the county in which letters testamentary are granted, in another county or state, or even in a foreign country; and if letters testamentary be granted in another state, as well as in this, a suit may be maintained here, before the settlement of any administration account in the other state.
    If an executor, after the expiration pF a year, apply the assests in his hands to the payment of legacies or distributive shares, to the prejudice of a creditor of whose claim he'had no notice, it is a devastavit.
    In an issue joined on the plea of plene administravit9 which was found for the plaintiff, the jury besides finding against the defendant on the issue joined, found also that he had wasted the goods which came to his hands, and the Court below ordered judgment for the whole amount of damages * and costs to be entered, de bonis testatoris si, &c. et si non de bonis propriis of the defendant. Held9 that no issue being joined on the wasting of the testator’s goods, what the jury found on that subject, was unauthorised, and that consequently the judgment.was erroneous.
    When the verdict is for the plaintiff, on a plea of plene administravit, the judgment for all but the cpsts, is de boms testatoris. If, however, on Such a judgment, a fieri fads be issued, it is the duty of the sheriff, unless goods of the testator be shewn by the defendant, to return a devastavit, which the defendant is estopped from denying, because the verdict is conclusive, that assets were in his hands at the commencement of the suit.
    Where a writ of error is brought by the plaintiff, this Court may enter such a judgment, as ought to have been entered below; but where it is brought by the defendant, the judgment can only be reversed.
    In some cases a judgment may 'be reversed in part, and affirmed in part; but ia this case, to strike out that part of the judgment, which mentions the defendant’s proper goods,-and retain only that which relates to the goods of the testator, would be essentially to alter the judgment, and not to affirm a separate part of it. • '
    
      The defendant pleaded covenants performed, and no breach on which issue was joined. He afterwards pleaded plene administravit, to which the plaintiff replied assets in the hands of the executor, and that he hath not fully administered, on which issue was also joined. On these issues, the cause was tried at March term, 1814, when the jury returned a-verdict, in favour of the plaintiff, for the amount of Philip Pendleton's account, with interest on the several items at five per cent. The verdict concluded thus, “ and the jury further do find, that Andrew Swearingen, esq. the defendant, executor of Van Swearingen, deceased, had assests in his hands sufficient for the payment of the aforesaid debt due to the estate of Philip Pendleton, deceased, and which ought to have been applied to the payment thereof, but that the said Andrew, hath wasted and misapplied the same assets.”
    ' At the trial, several points were made by the counsel for the defendant, and reserved by the Court.
    1. The action being brought, to recover a moiety of the monies expended in acquiring the legal title to certain lands, and it appearing that Philip Pendleton had obtained a conveyance of the legal title to himself, it was contended, that before a suit could be brought to recover the portion of the purchase money with which Van Swearingen's representatives might be chargeable, a moiety of the legal estate ought to have been conveyed to them, by the representatives of Pendleton.
    
    2. It was further contended, that the defendant, who had in the month of January, 1794, taken out letters testamentary, in Virginia, where Van Swearingen died, and where he had resided a considerable time previous to his death, and also in Pennsylvania, was not answerable in Pennsylvania for assets which might have come to his hands in Virginia, until his accounts should be settled there, which settlement, it was said, would be conclusive.
    
      3. That the executor of Van Swearingen, not having received notice of this debt, it was lawful for him after the expiration of a year, to apply the assets to the payment of legacies ór distributive shares; and that although he might require refunding bonds of the legatees or. distributees, yet it was not necessary for his protection that.he should take such bonds.
    4. It was also made a question, whether .the judgment to be rendered upon the verdict, should be de bonis testatoris si, &?c. et si non de bonis propriis of the executor, or simply de bonis testatoris.
    
    The opinion of the Court on these several points, was delivered by the President; and as it received the sanction of thi , C ourt, except in relation to the last point, it is published at length. It was as follows. ■
    ' “ On the first point it has been urged, that Philip Pendleton ought to have caused the legal title:which was purchased for the mutual benefit of himself and- Van Swearingen, to , have been conveyed-to them both, as tenants in common, in place of having the property conveyed to himselfthat by taking a title in his own name, he enabled himself (had he been so disposed) to defeat altogether the equitable right of Van Swearingen to a moiety of the land, by making sale of it to a purchaser for a valuable consideration without notice of the trust, and-that it is unreasonable to compel the representatives. of Van Swearingen, to pay for a legal title which they may never obtain.
    There can be no doubt, but-that the representatives of Van Swearingen, have a right to obtain the legal title for a moiety of this land, so far as it was acquired by Philip Pendleton. 'The only question is, whether it be such a pre-requisite to the right to sue,- that no suit could be sustained prior to such conveyance.. Now the cause of .action is the disbursement of the money, by Philip Pendleton,- to procure the legal title. If this money was laid out pursuant to the agreement beT tween the parties, Pendleton had a right, at any time, to call upon Van Swearingen for his proportion. Suppose the money had been paid by Pendleton to the person holding the legal title, under an agreement'with such person to convey.it, and real obstacles or perverseness should have delayed the conveyance, was Pendleton in such case bound to wait for Van Swearingen!s moitey of the money, which he, Pendleton, had advanced for their mutual benefit until a conveyance could ke enforced? It is conceived, he was not. The obtaining of a legal title then, to a moiety of the land, by the representations of Van Swearingen,,seems not to be a pre-requisite to their liability to a suit.
    Yet, where the legal title has been acquired by'the person claiming to be reimbursed monies paid in the acquisition of it, equity seems to. forbid his recovering the one, whilst he with-holds the other$ and a court of chancery would probably compel the trustee to convey the legal estate before he would be permitted to receive the money which the other had-agreed to pay in contemplation of obtaining a legal title. A Court in Pennsylvania has the power, and ought to do the same justice between the parties. Its process ought not to be permitted to be used to collect the monies by a plaintiff in such a case, till he has done what equity requires towards the defendant. It therefore appears to be right that this Court should stay execution, till the legal estate in a moiety be conveyed to the representatives of Van Swearingen.
    
    In respect to the second point, the same opinion, which was Intimated at the trial, is still retained. The executor is liable in respect to all the assests which came to.his hands, whether they arise in the county where the letters testamentary are granted, or elsewhere, as in another state, or even a foreign country; and this principle is well established. In Dow-dale’s .case, 6 Co. 46, b. Cro. Jac. 55; the defendant in an action of debt brought against him, as executor of Lang, pleaded plene administravit, and issue upon assets; The jury found, that the testator died infra regnum Hibernia;, and the defendant, after the testator’s death, divers of the testator’s goods, within the realm of Ireland, took and administered, to the value of the debt, and that the defendant, nulla alia siveplura bona quce fuere prcedicti testatoris, post mortem testatoris infra regnum Anglia;, unquam administravit, et si, £s?c. And it was objected that a jury cannot find a thing.although it be transitory, done in another realm. But it was resolved by the Court, that the “jurors have found the substance' of the issue, that is to say, assets; and the finding that they are beyond sea, is surplusage; for if the executors have any goods of the testator’s in any part of the world, they shall be charged in respect to them ; for many merchants and other men who have great stock, and goods to a great value beyond sea, are indebted here in England, and God forbid that these goods should not be liable to their debts, for otherwise these would be a great defect in the law.” As to the settlement of the account in Virginia, the creditor was no more bound to wait for that, than he would be to wait for the settlement of the account in Pennsylvania.
    
    “ In relation to the third point, there are four several ways in which an executor may be charged de bonis propriis. 1st. By the return of the sheriff, as where, upon an execution commanding the sheriff to levy the debt de bonis testatoris, he returns nulla bona testatoris, and that the defendant (the executor,) hath wasted the goods. In such case the plaintiff may sue out an execution de bonis propriis of the executor, such return of the sheriff not being traversable; the defendant, in case it were false, had no remedy but a suit against the sheriff. This Bohun (Inst. leg. 255.) observes, was the old mode of proceeding. But the sheriff being afterwards sued, for making such return, as being false, another method was adopted, more safe indeed for the sheriff, but more chargeable and tedious to the party. This I shall notice as the second mode; by an inquest of office, where the sheriff had made a return of nulla bona testatoris on the first fieri facias, a suggestion was made on the roll, that the defendant had wasted the goods ; whereupon, a special fieri facias issued scilicet, that the sheriff levy the debt of the goods of the deceased, et si sibi constare potuit, that the executors have wasted the goods, then de bonis propriis of the executors; upon which execution, it will be the duty of the sheriff to take .an inquisition, and if it be found by the inquest, that the goods of the testator to the value of the debt were wasted by the executors, and this be returned on the writ, a scire facias, will issue against the defendants, to shew cause why execution should not be awarded of their own proper goods and chattels. The defendants, however, may traverse the devastavit found by the inquest; and although the original judgment be against them, by default or confession, yet they may appear to the scire facias and plead plene administraverunt, absque hoc quoddevastaverunt, which amounts to no more than a general plene administravit, which they might have pleaded the first time. Hence this mode of proceeding was considered so tedious and troublesome, that it has been observed, a plaintiff had better lose a small debt, than proceed thus against an executor who means to be troublesome. Boh. Ins. Leg. 255.
    
    The third way of charging an executor de bonis propriis after obtaining a judgment de bonis testatoris, is by bringing an action of debt on the first judgment, and suggesting a devastavit, and to such action he cannot plead any thing in bar which he might have pleaded to the original action. As if the original judgment had been obtained by confession or default, the defendant cannot plead plane administravit, because a judgment, by confession or default, is an admission of assets to the amount of the plaintiff’s demand; and the defendant is estopped to allege the contrary.
    A fourth mode in which an executor may be charged, is by his own pleading; as where he has rendered himself liable by pleading a matter, which would be a perpetual bar, which lies within his own knowledge, and is false. In such case judgment shall be entered de bonis testatoris si, &c. et si non de bonis propriis of the executor; as if he pleads nc tinques executor, or that he renounced, and nulla bona devenerunt admanus. And upon a judgment thus obtained, where an executor so charges himself, though the first execution must be de bonis testatoris, yet the sheriff cannot return nulla bona testatores, simply, but must also return a devastavit, Cro. Eliz. 102.
    “ If defendant pleads administravit, plaintiff may pray judgment, quando acciderint; but if he takes issue on the plea, and it be found against him, there shall be judgment quod querens nil capiat, £i?c. If the verdict be against the defendant on this plea, it is necessary that the jury should find the amount of the assets ; for which alone the plaintiff shall obtain judgment. It is necessary too, that the plaintiff should have proved the amount of his claim, for though the plea admits the debt, it does not admit the amount of it. Ib.
    
    “ Whether the executor had, or had not, notice of this claim, is not material. Although he might have had notice of it, still the exhausting of the assets, even after the expiration of a year, in the payment of legacies, or distributive shares, in prejudice of a creditor, (without requiring refunding bonds of the legatees or distributees,) would amount to a devastavit.
    
      <{ In the case under consideration, the jury have found the amount of the plaintiff’s claim, and that the defendant had assets to the amount which ought to have been applied in satisfaction of it; but that he had wasted them.
    “ We are therefore of opinion, that judgment be entered for the plaintiff, agreeably to the verdict, de bonis testatoris si, &c. et si non de bonis propriis, of the executor. Execution to stay, until the legal estate, so far as it was vested in Philip Pendleton, held in trust for the use of Van Szoearingen, be conveyed to the use of his representatives.”
    The cause was argued in this Court, on the grounds stated, above, by Ross, for the plaintiff in error, who cited 6 Bac. Ab. 304. (old edit.) Go.odisson v. Nunn,
      
       Hovolet v. Strickland.
      
      Jones \K Barkley.
      Duke of St. Albans v. Shore.
      
       2 Bac. Ab. 399. Szuinb. 396, 7. Dean and Chapter of Bristol v. Guyse.
      Cro. Car. 286. 6 Bac. Ab. 545. Erving v. Peters. And by
    
      Campbell, for the defendant in error.
    He cited M<Col-lough v. Toung.
      
       Grwme v. Harris.
      Jacobs’s ¿aw Dictionary, Devastavit, Szvinb. 393. Chapman v. Gale. --- 
       Pettifan’s case. 2 Vin. 312, 313, 314, 315. Braxton v. Winsloru.
      
       Gordon’s Administrators v. Justices ef Frederick.
      
       Mary Shipley’s case.
      
       Gibson v. Brook.
      
       Fid. Pr. 933, 4, 5, 6. Clements v. Waller.
      Cuming v. Sibly.
      
       Parker v. Harrise
      
       Frederick v. Lookup.
      
       Henri-ques v. Dutch West India Company.
      
       Lili. Ent. 233. Bel lezv v. Aylmer.
      
       2 Bac. Ab. 288, 289.
    
      
      
         4 T. It. 761.
    
    
      
      
        Co-op. 56.
    
    
      
      
        Doug. 684.
    
    
      
      
         1 H. Blac. 270.
    
    
      
      
         1 Sound. 112.
    
    
      
      
        3 T.R. 688.
    
    
      
       1 Binn. 63.
    
    
      
       1 Ball. 456.
    
    
      
       2 Lev. 22.
    
    
      
      
        Kirby, 270.
    
    
      
      
         Cro. Rep. 32, S3.
    
    
      
       1 Wash. Rep. 31.
    
    
      
       1 Munf. 9,10.
    
    
      
       8 Co. 266.
    
    
      
      
         Cro. Eliz. 886.
    
    
      
       4 Burr. 2156.
    
    
      
       4 Burr. 2490.
    
    
      
       1 Salk. 262.
    
    
      
      
         4 Burr. 2018.
    
    
      
      
         2 Sir. 808. 2 Ld. JRaym. 1532. S. C.
    
    
      
       1 Sir. 188.
    
   The opinion of the Court was delivered by

Tilghman C. J.

Not perceiving any error in this record but in one point, my observations will be confined to that point only. Issue was joined on the plea of plene administravit, which was found against the defendant. It was the opinion of the Court of Common Pleas, that judgment should be entered, for the -whole amount of damages, and costs, de bonis testatoris si, &c. et si non de bonis propriis, of the defondant. The reason assigned for this judgment is, that the jury, besides finding against the defendant on the issue joined, found also, that he had wasted the goods which had come to his hands. ‘ No issue was joined on the wasting of the goods of the testator, by the defendant, and therefore, whatever the jury found on that subject, was unauthorised. It was surplusage, and not to be regarded. In considering, therefore, what the judgment ought to have been, we must throw the wasting of the goods out of the question. It is simply a verdict for the plaintiff, then, upon the plea of plene adminisiravit. What judgment does the law authorise in such case ? I find it positively laid down in the year book 11. .H. 4. p. 5. that the judgment for all but the costs, is to be of the goods of the testator. This case is cited in 11 Vin. 386. The same principle was recognised, in Mary Shipley’s case, 8 Co. 134, and may be traced without contradiction, in various decisions and opinions of Judges from that time to the present. It is true, that supposing the proper judgment to have been entered, and a fieri facias issued, it would have been the duty of the sheriff, unless goods of the testator had been shewn by the defendant, to return a devastavit, -which the defendant would have been estopped from denying, because the verdict was conclusive, that assets were in his hands at the commencement of the suit. It is to be regretted therefore, that we have it not in our power to enter the proper judgment. But the law is settled. Where the writ of error is brought by the plaintiff, we may enter such judgment here, as ought to have been entered below; but where the defendant brings the writ of error, we can only reverse the judgment. It sometimes happens, indeed, that a judgment may be reversed in part, and affirmed in part; as where the judgment is good for the debt, but bad for the costs; such were the cases of Cummins v. Sibley, 4 Burr. 2489, and Frederick v. Lookup, 4 Burr. 2018. And here, the plaintiff in error wished us to strike out all that part of th^e judgment, which mentioned the defendant’s proper goods, and retain only the first words, de bonis testatoris, but that would be amending the judgment, and not affirming a separate pak of it. To stop at the words de bonis testatoris, and cut off í!he rest of the sentence, would be to alter the judgment essentially; for it was not intended by the Court who rendered it, to limit any part of it to the goods of the testator. .The condition, that if no goods of the testator could be found, the proper goods of the defendant were to be levied on, pervades the whole.

I am therefore of opinion that the judgment should be reversed.

Judgment reversed.  