
    [Philadelphia,
    April 10, 1826.]
    LEE against GIBBONS, Guardian of WRIGHT.
    IN ERROR.
    Where the goods of a decedent, or the proceeds-thereof in money, cottie into the hands of one, who declares that lie holds the property in trust for the children of the decedent, the children may, if all the debts of the decedent are paid, maintain a joint action against such person for money had and received, and recover the amount received by him, without having taken out letters of administration on the estate of the decedent.
    But, if such person has acted unfairly, and wasted the property, the children can, in this form of action, recover no more than he has actually received.
    On a writ of error to the District Court for the city and county of Philadelphia, the case was thus:'
    
      William Wright, Elizabeth Wright, and Jane Wright, minor children of John Wright, who had absconded sometime before the commencement of the suit, and of whose death some evidence was given, by their guardian, George W. Gibbons, brought an action for money had and received against William Lee, the plaintiff in error, to recover the proceeds of certain personal property, said to have come into tbe possession of the said Lee, as trustee of the said children, and to have been sold by him. It appeared in evi-dénce, that Wright absconded, on the 9th or 10th of December, 1810, leaving a widow and children, the plaintiffs in this action, and certain personal estate. There were debts due from him at the time he absconded. No letters of administration were ever taken out on his estate, but the widow kept possession of the property, and paid all the debts except one, which remained due when the action was instituted, but was.said to be barred by the act of limitations. After her husband had absconded, the widow acquired more property, and Lee, tbe defendant below, who was her brother, advanced to her one thousand eight hundred and seventy-five dollars, which was invested in part in the furniture and stock. She continued the same line of business as her husband, by the advice and under the name of William Lee, who repeatedly declared that it was for the benefit of the children. Her proceedings were all by the advice and under the agency of" Lee, with a view, it Was said, to conceal the property from the creditors of Wright. Within seven years, there were reports, both that Wright was dead and that he was not dead; and one letter was received, a'nd produced by Lee on the trial, saying that he was dead. In the spring of 1814, the widow, by the advice of Lee, married one William Chase, previously to which the stock, &c. were appraised, and the following agreement signed by Lee and Chase:
    
    “Estimation and valuation of the following goods and household furniture, at the house and shop where Mrs. Wright now lives, belonging to me, William Lee. — May 23, 1814.
    Shoes and stock, - $1429,11
    Together with household furniture, - 2000,00
    “This is to certify, that I hereby agree to take the above named goods and household furniture from William Lee, at the above valuation or prices, as above stated, and also the boys, and cash in hand, and for the true and faithful payment of the whole two thousand dollars, and every part thereof, I give him my bond and warrant of attorney for the same, at the time of my receiving a transfer in the above property, which is the true consideration of the bond.
    ' (Signed) “William Chase.’7
    
    
      Chase accordingly gave to Lee his bond, with warrant of attorney, for two thousand dollars. It was said by some of the witnesses, that Lee agreed to take these papers for the benefit of the wife and children of Wright, and by others, for the benefit of the children alone. Chase continued the business, until the 27th of .June, 1814, when, in consequence of some misunderstanding between them, on a subject not connected with these transactions, Lee entered judgment on the bond and took out execution, which was levied upon the household goods and stock. A motion was made, on behalf of Chase, to open the judgment and let him into a defence; butAee and Chase afterwards agreed to divide the stock, which was valued at one thousand four hundred and twenty-nine dollars, and eleven cents. Lee took half, and sold it for six hundred and twenty-five dollars. Chase kept the remaining half and used it, and the furniture in the house in which his wife and children resided. In the spring of 1815, Chase removed to New. Jersey. Lee followed him there, and in November, 1817, entered a judgment against him. and- levied on the furniture, which was in part the former property of Wright, and in part acquired by the industry of Mrs. Chase. When the sherifPs sale took place, Lee purchased the whole himself. The amount was not given in evidence, but Lee declared he purchased for the use of the children, and had no claim except for them.
    The counsel for the defendant requested the court to charge as follows:
    1. That in an action for money had and received, the plaintiff must prove that the defendant has received his money.
    
      2. That in such action nothing more can be recovered, than the sum actually received, with interest for the detention.
    3. That when the subscribing witnesses to a bond are dead, or have become interested, the legal way of proving the bond, is to prove the handwriting of the subscribing witnesses.
    4. That the children of a person dying intestate, leaving personal estate or debts, in Pennsylvania, eannot, without administering to the estate, maintain a suit in their own name to recover such goods or debts.
    5. That if they can maintain such suit, it eannot be done by them jointly, and without joining their mother, if she is alive.
    The court charged the jury as follows:
    
      “ 1. and 2. That in an action for money had and received, the plaintiff must prove that the defendant has received money, to which the plaintiff is entitled; but positive proof is not required. If from circumstances the jury are satisfied of the receipt of such money, it is sufficient. The jury must determine, whether the goods mentioned in the inventory, whieh had been given in evidence, had been converted by the defendant into money. ' If they had been so converted by the defendant, fairly and bona fide, the defendant would have been liable only for the exact sum he had received, with interest; but if he had wasted the goods by sales of them at low prices, to the prejudice of the trust, he was answerable according to their value, of which the jury would judge.
    
    
      “ 3. That when the subscribing’witnesses are dead,, or have become interested, the legal evidence of the execution of a bond,. is to prove the handwriting of the subscribing witnesses, which is sufficient for it to go to a jury; but the opposite party is not thereby precluded from impeaching the bond, and the defendant might strengthen his ease, by proving the handwriting of the obligor.
    “4. and 5. That it had been argued, on the part of the defendant, that John Wright’s estate was insufficient to pay its debts, of which the jury would judge from the evidence; — that, the evidence given that the shop goods were manufactured after the death of John Wright; that a part of the furniture also was subsequently acquired, and that all the debts had been paid by Mrs. Wright, sufficiently showed that an administrator of John Wright, if administration should be taken out, could not support an action for them. The only debt alleged to be unpaid, was a balance claimed by Mr. Wood, and the debt whieh John Bell said was due to him, but which appeared doubtful, and both of whieh were'barred by the statute of limitations; that the defendant, having intermeddled with Wright’s goods, was liable to creditors, as executor, of his own wrong; that it was enough to say, that the plaintiffs did not claim, as heirs or next of kin, but as cestui que trusts, and their action, in the present form, was maintainable
    
    
      
      P. A. Browne, with whom was Levy, for the plaintiff in error.
    1. The court erred in charging the jury, that u if the defendant had wasted the goods by sales of them at low prices, to the prejudice of the trust, he was answerable according to their value, of which the jury would judge.” We say, that, in this form of action, for money had and received, &c. the defendant is liable only for the exact sum of money received by him. The action affirms the sale, and claims what has been received under it. Moses v. M‘ Ferian, 2 Burr. 1008. Lindon v. Hooper, 1 Cowp. 416. Bull. N. P. 129. Walker v. Constable, 1 Bos. & Pull. 306. 2 Id. 446. (note.) East-wick v. Hugg, 1 Dali. 222.
    2. The plaintiffs were not entitled to maintain an action in their own names, and, if they were, they should have sued severally. There ought to have been an administrator of the estate of John Wright, who alone could support the action. There was proof that one debt was unpaid. The executor represents the testator, as to all his personal contracts. Toll. Law of Executors, 431, (Am. Ed.) The heir, therefore, may bring real, but not personal actions. 3 Bac. Ab. 457. No action can be maintained by the heir, upon a covenant broken'in the life of the ancestor. Com. Dig. Adm. B. 13. Covenant, B. 1. 3 Bac. Ab. 91. The heir cannot sue for waste committed in the life of the ancestor. Com. Dig. Waste, C. 3. The plaintiffs cannot sue, as being entitled under the act of distributions, as next of kin. An administrator alone could support the action. Blackborough v. Davis, 1 P. Wms. 48, 49. Stat. 31 Ed. 3. c. 11. Hughes v. Hughes, 1 Lev. 233. Stat. 22, 23 Car. c. 2. c. 10. 3 Ruff. 334. Act of the 29th of April, 1794, sect. 1. 3 Sm. L. 143. Act of the 21 st of March, 1772. ’1 Sm. L. 383. If letters of administration should hereafter be granted on the estate of John Wright, the defendant will not be protected by a recovery in this action against a suit by the administrator. 2 Binn. 298. We deny the position, that the defendant took possession of the property in question as the trustee of the plaintiffs. He took it as the executor de son tort of John Wright. An executor de son tort may be sued by a creditor, by the lawful executor, or administrator, but is not liable to suit by the next of kin. Toll. 368, 369. 3 Bac. Ab. Executor and Administrator. But if the plaintiffs, had cause of action, they could not maintain a joint suit, but should have brought separate actions for their distributive shares. 4 Dali. 147.
    
      Norris and Rctwle, for the defendants in error.
    1 his action is not brought by the plaintiffs below for a distributive share of their father’s estate, but is founded upon a trust for their benefit. Wright’s debts were all paid by the industry of his widow, and all his stock in trade was applied to that purpose. So that all the stock on hand, when she married Chase, for which Lee took a bond from Chase, had been acquired after the death of Wright, and this bond was avowedly taken in trust for the children. Zee had no claim to the property. He said once he took the bond in trust for the children, and once that he took it-for the wife and children. But when he issued a second execution against Chase in New Jersey„■ and bought the goods, he said it was in trust for the children. Under these circumstances, the action was rightly brought by the persons in whose favour the trust was declared. If a trust be created in favour of one without his knowledge, he may affirm it and support an action., Neilson v. Blight, 1 Johns. Cas. 205. Moses v. Murgatroyd, 1 Johns. Ch. Rep. 119. Clarke v. Shee-, 1 Cotop. 197 Longehamp v. Kenny, 1 Doug. 137. JLbbots v. Barry, 8 Eng. Corn. Law Rep. 157, Wal-leer v. Smith, 4 Dali. 389.
    The action was rightly brought by the plaintiffs jointly. This suit is in the nature of a bill in equity, in which all the parties interested must join. 3 Br. Ch. Rep. 365.- It was a joint promise, founded upon a joint consideration, and therefore a joint action lies. Vaux v. Steward, Style, 156, 157, 203. Saunders v. Johnson, Skin. 401. Weller v. Baker, 2 -Wils. 414. Coryton v. Lythebye, 2 Saund. 112, 116, (note 2.) 7 Mod. 116.
    Can the plaintiffs recover more than the money received by the defendant, together with interest? It is admitted they cannot, where there is an actual receipt of money; but where no money has been received, but a bond taken, the amount of the, bond may be recovered. The plaintiffs were entitled to recover something, and, the question is, how much? On that point the first part of the charge was right, though something inaccurate might have been added. But where, upon the whole, the charge is right, the court will not reverse the judgment, because there might have been error in some respects. Stafford v. Walker, 12 Serg. & Rawle, 190.
    The CouitT observed to the counsel of the defendants in error, that they had cleared the case of all difficulties except one, viz. that if the defendant below had wasted the goods, he was answerable in this action for their full value. This the counsel conceded to be error, but requested that the court would deliver their opinion upon all the points which had been made below.
   The opinion of the court was delivered by

Duncan, J.

This was an action for money had and received for the use of William, Elizabeth, and Jane Wright, infant children of John Wright, deceased. The evidence was, that certain property belonging to their father, who had deserted his family and disappeared, and whose death was fairly to be presumed, under some understanding between his wife and her brother, William Lee, the plaintiff in error and defendant below, was concealed and covered, as was said, to prevent their being seized for the payment of John Wright’s debts. Certain proceedings, to give some colour to the acts of William Lee, were done, principally by his advisement. In the course of years, this property, or a conside-rabie part of it, has been transmuted in a course of business carried on by Mrs. Wright, in the name of William Lee, who repeatedly declared, it was for the use of the children. In 1814, after the marriage of Mrs. Wright with one Chase, an appraisement of the goods was made, and the whole stock and furniture were taken by Chase at two thousand dollars, who gave his judgment bond to Lee for the amount. Lee, in the same year, on some misunderstanding with Chase, entered up his judgment, issued an execution, and levied on these goods. A motion .was made to set aside the execution, and an issue was directed by the court. Before this came to trial, Lee and Chase came to some agreement, and divided the goods between them. These goods were the furniture of John Wright, and articles in the shoe-making line, manufactured by Mrs. Chase, after the death of her husband, she having married her journeyman, Chase. In 1817, Lee entered up his judgment in New Jersey, to which state Chase had removed, and levied on the furniture and other property which was partly the property of Wright, her first husband, and partly property acquired by Mrs, Wright and sold, always declaring that he bought them for thé use of the children.

. Two questions were made in the District Court: 1st. Whether the plaintiffs could sustain'an action in their joint names, or at all without taking out administration on the estate of their father, John Wright. 2d. Whether, in case they proved any money to have come into the hands of William Lee on account of these goods, they could in this form of action recover more than Lee actually received i

It is quite clear, that the children of a decedent cannot bring any action for his property without administration, and that even against an administrator they could not join in the same action for their distributive parts. In that aspect of the case, it would be with the plaintiff in error; but this action is not so brought. It. is brought against Lee, not as trustee by act and operation of law, but on an express declaration of trust that he held the property for the use of the children of John Wright. In this action, which is in fact a bill in equity, it will not be endured, that he should say to cestui que trusts, all these transactions between your mother and me áre in fraud of the law, to conceal the property from your father’s creditors, and I am only to account to the legal administrator for them. The children participated in no fraud. If their mother, their natural guardian, and their uncle, standing in loco parentis, conceived it proper to go on without administration, and take possession of the effects of John Wright, and these effects, or the proceeds of them in money, have come to the hands of the defendant, on his express promise that he held them in trust for the children, he would be liable for the money he has received in this trust, to the children in this form of action. It disturbs not the order of payment of debts, for all subsisting debts have been paid. Cui bono take out letters of administra-, tion? The uncle has their father’s goods; the lather’s debts are paid. The uncle has received the money on an express undertaking to account to them for it. But it is said, they should each one have brought an action for their separate proportion. The action is founded on a promise implied or expressed. If it be on an implied promise, then it must follow the nature of the consideration, and as that is joint or several, so must the action be. But where it.arises on an express' promisé, as here, that he held in trust for all the children; and as the action could not be sustained at all, without proof of this, then the nature of the action is governed by the consideration of its being an express promise, and that being a joint promise, all to whom it is made must, or at least may, sue jointly on it, and after having recovered, settle among themselves the proportion of each. This is now well settled in Coryton v. Lythebye, 2 Saund. 116, a. (note 2,) and in Baggs v. Curtin and others, 10 Serg. & Rawle, 211. But in this form of action, no more can be recovered than the money actually received by the defendant; not what he ought to have received, had he acted fairly and honestly. Though there may be some positions in Moses v. M‘Ferlan, 2 Burr. 1005, by Lord Mansfield, which his successors have cancelled out of it, the leading doctrine of the nature of this action never has been questioned. The great objection to some of his positions is, that they have been laid down too large, when he says that a court of common law may sustain this action, wherever one man' has money which another ought to have, or wherever one man has an equitable right to the money, he also has a legal 'action. Since courts of common law cannot administer equity in the same way courts of equity can, we have adopted the most liberal principles in this action, and because we have no court of chancery, sustained the action where one man holds unjustly the money of another. You may, in every case, waive the tort. Where the party has received your money, trespass or trover may be converted into this action. Where the defendant has turned the article into money, or there is reasonable evidence that he has, as in the case of the. masquerade ticket. But where .you do this, you ratify the conversion; you adopt his act, and can recover nothing more than he has received. In England, not even interest; but here, the money received, with the interest. A man may disaffirm the act ab initio, by reason of the fraud, and bring his special action, and recover his actual damages, or affirm it and demand the money; he may make his election. The opinion of the learned judge was certainly correct, as to the right of the plaintiffs, provided the jury were satisfied of an actual declaration of trust by Lee, that he held the property bought in for the benefit of the children, which would be equivalent to an express promise to account for it to them upon a meretorious and legal consideration; for the property of their father was their property, and a slight matter might convert him'into a trustee, requiring, it is true, some evidence of .an acknowledgment of accountability to them, to maintain this action. But, with respect to the amount to be recovered, the court cannot accede to the measure of damages. That is in opposition to the first principle of the action, which is, that no more money can be recovered than the defendant has received. The instruction to the jury is a departure from this, for they were charged, “that if the goods had 'been converted by the defendant fairly and bona fide, the defendant would only have been liable for the exact sum he had received, with interest; but if he had converted the goods by sales at low prices to the prejudice of the trust, he was accountable according to their value, of which the jury were to judge.” Now, we have seen, that wherever the plaintiff makes his election to proceed in this form of action for the money, he affirms the act of conversion and adopts the sale, and goes only for the price, not for the value. In every other matter the opinion is free from exception; but in this there is error.

Gibson, J., was absent.

Judgment reversed, and a venire facias de novo awarded.  