
    The State, use of Griffin, et al vs. Hanson’s Adm’x.
    June, 1828.
    B, as the executor of T, entered into a testamentary bond on his estate. Upon the death of R, letters of administration de bonis non were granted to B. In an action on the bond executed by R, brought against his administratrix, to recover the distributive shares due to certain legatees under the will of T, the replication, in assigning the breach, stated among other things, that B had duly administered all the goods, &c. which came to his hands; but that R did not duly and properly administer the goods of T, but misapplied and wasted the same. That by the inventory of the estate of T, returned to the orphans court, among other, was the following property, to wit, one negro boy ,T of the value ofj &c, &c. which property was misapplied, wasted and consumed, by R, &c. — Mold, that the action could not be sustained.
    Appeal from Charles County Court. This was an action of debt, brought on the testamentary bond executed to the state on the 29th of March 1808, by Robert Hanson the intestate of the defendant below, (now appellee,) on the estate of Theophilus Hanson, as his executor. The defendant pleaded general performance, and the plaintiff replied non-performance, and assigned for breach, that Theophilus Hanson, the father of the said Robert, did in his lifetime, to wit, on, &c. make, and in due form of law, sign, seal and execute, his last will and testament in writing, and thereby, after bequeathing certain specific legacies, &c. bequeathed as follows, viz. “Item. I leave and bequeath all the residue of my personal property, of what nature or kind soever, to my son Robert, and my daughter Mary H. Hanson, and their heirs, forever; in trust and confidence, nevertheless, and for the use and purposes hereafter mentioned, and no other use or purpose; that is to say, that my executors, hereafter mentioned, shall pay my just debts, and that Robert Hanson shall hold and enjoy absolutely one-third part of the said residue; that my said daughter, Mary H Hanson, shall hold one other third during her single life, and after her death or marriage, that which may be assigned for her use, shall be and remain to the children of Pamela L. Briscoe; and to direct and see that this provision is carried into effect, I hereby appoint Robert Hanson trustee for that purpose. And as to the other remaining third part of the residue aforesaid, it is my will and desire that my son Robert 
      
      Hanson, and my daughter Mary II. Hanson, should have the legal right, and be trustees thereof; and as in the other be¿ quest to Pamela L. Briscoe, they should make use thereof in the best manner they can for the separate use and support of the said Pamela L. Briscoe, and her children, for and during her natural life; and at the death of the said Pamela L. Briscoe, the said property, last devised, is to be equally divided between all the children she may leave.” And he thereby constituted and appointed his son Robert Hanson, and his daughter Mary H. Hanson, executor and executrix, trustees and overseers, of his last will and testament. And that after making and executing his last will and testament, to wit, &c. the said Theophilus Hanson died, to wit, at the county aforesaid, by which said will and testament the said Robert Hanson was appointed executor thereof, and to whom letters testamentary were by the orphans court of said county, in due form of law granted. In which said last will and testament, among others, is the following clause and bequest, to wit: <;that Robert Hanson shall hold and énjoy,” &c. [as set forth jn the said will.] The replication then averred, that after the execution of the said will, and death of the said Theophilus, the said, Afery II Hanson intermarried with a certain Samuel Griffin, which said Mary, as well as the said Robert and the said Pamela, L. Briscoe, have since all died; by reason whereof, and by virtue of the last will and testament aforesaid, the children of the said Pamela became, entitled to two-thirds of the residue of the personal estate of the said Theophilus, after, all necessary allowance and disbursements upon the administration of the said estate were discharged and allowed. That upon the death of the said Robert, letters of administration de bonis non upon the- estate of the said Theophilus, were granted to Thomas■ Burgess, who hath duly administered all the goods and chattels of the said deceased which came to his hands; but that the said Robert did not duly and properly administer the goods. and chattels of said deceased, according to the tenor and effect of the writing obligatory aforesaid, and to the condition thereof, but misapplied and wasted the same. That after the death of the said Robert Hanson, and marriage and death of the said Mary II Hanson, to wit; &c. a certain Peter Griffin, in the endorsement of the original writ in this cause mentioned, was by the orphans court of Charles county in due form of law appointed trustee to the children of the said Pamela L. Briscoe. That by the inventory of the estate of the said deceased returned to the orphans court, among other was the following property, to wit, one negro boy Joe, of the value of, &c. &c. amounting in the whole to the sum of $638 25, of which amount, to wit, the sum of $422 75, the children of the said Pamela are entitled by virtue of the said last will and testament, and for which suit is brought by the trustee for their use as aforesaid. Which said property was misapplied, wasted and consumed, by the said Robert, in his lifetime; of which said property the children of the said Pamela, by their guardian or trustee, or any other person for their use, never received any part or benefit therefrom, to wit, at, &c. The replication then avers, that the said Robert had not observed, performed, fulfilled and kept, the said several matters and things in the condition of the said writing obligatory mentioned, but in this had wholly failed, &c. Rejoinder, that certain proceedings were had in the orphans court in relation to the subject matter in the present suit, and upon such proceedings the said court then and there pronounced the following judgment, to wit; “Upan hearing the bill and demurrer in this case, the court order and determine, that the bill be dismissed, with costs to the respondents, and that the administrator de bonis non is responsible for any and all claims in this court against the estate of Theophilus Hanson,” <$’e. To this rejoinder the plaintiff demurred; and the county court overruled the.demurrer, and rendered judgment for the defendant. The plaintiff appealed to this court.
    The cause was argued before Buchanan, Ch. J. and Earle, Martin, Archer, and Dorset, J.
    
      J, G. Chapman, for the Appellant.
    The action in this case arises upon a testamentary bond, for a devastavit of the executor, and is brought against the executor’s personal representative. Theophilus Hanson, after bequeathing certain specific legacies, gives one third of the residuum of his property to the children of Mrs. Briscoe, his daughter, and upon the marriage of his other daughter Mary, he gives one other third part to Mrs. Briscoe’s children, and appoints his son Robert Hanson the trustee and his executori Robert Hanson obtained letters testamentary upon the estate of his father, and converted a large amount of the personal property to his own use, and does not account to the orphans court for it. He died before the settlement of the estate, and letters of administration de boriis non were granted to Thomas Burgess, who duly administered all the property which Robert Hanson, the executor, did not waste. To the plaintiff’s replication the defendant rejoined, and the plaintiff demurred, which the court below overruled. Three points arise upon the demurrer. 1. Whether the action can be sustained against the administratrix of the-executor, on the bond executed by the executor of Theophilus Hanson, for a breach of the condition of the •bond? 2. Whether a decision in the orphans court, relative to the estate of a deceased person, is conclusive, and precludes the party from his action in the county court on the testamentary bond? 3. That there is such a departure in the rejoinder from the plea, as to be fatal'. '
    1. The first point is to be settled by its analogy to adjudged cases., In the cases referred to in Wheatly v Lane, 1 Saund. 219, (note 8,) a judgment against an executor is evidence of assets on a devastavit; and upon that fact being established, the debt becomes personal, and the executor’s personal representative is'liable in his character of administrator or executor. In the, case now before the court, the devastavit is admitted, and the question does not vary from the point decided in Wheatly v Lane, except that the action is upon the bond for breach of the condition. By the Stat. 30 Car. II. ch. 7. and 4 & 5 William & Mary, ch. 24, s. 12, the executor or administrator of any executor, who shall waste or convert to his own use, the estate of his testator, shall be liable and chargeable in the same manner the testafor or intestate would have been if living., It seems to be evident, that if Robert Hanson, the executor, were living, he would be liable to the equitable plaintiffs in an action on his bond for the devastavit. The case of Shelton v Hawling, 1 Wils. 258, seems to be e-onclusive as to the liability of the administrator of the executor, for the devastavit committed by the executor. This was the principal point decided in the court below; and if the principle is correct, the administrator de bonis non cannot be answerable; for upon the devastavit being established, the debt becomes personal as to the executor, and if living, he would be chargeable de bonis prop?'iis; his administratrix must, therefore, be chargeable in her representative character. The action could not have been brought upon the administration bond entered into by the administratrix, for she might have administered all the goods of Robert Hanson, and yet the securities on his bond would not have been discharged; neither could the action be sustained against the administrator debonis non, for he is not in default, having administered all the goods of the testator, Theophilus Hanson, which came to his possession, and complied with the condition of his bond. If Robert Hanson’s estate was insolvent, and the securities in his bond in the like situation, will it be contended that the administrator de bonis non, would be answerable to the distributees for the executor’s devastavit? If such doctrine was law, who would administer after a wasteful executor? Ho, then, who is in default, should be chargeable for the waste. The appellee represents the executor, Robert Hanson, and should be chargeable for his devastavit, as far as she has assets of lus «state. Merchant v Driver, 1 Saund. 307. Blackmor v Mercer, 3 Saund. 403. It will not be denied that the administrator de bonis non could have maintained an action against the administratrix of the executor, (the appellee,) for the property which was not accounted for by the executor, Robert Hanson. Haslett’s Adm’r. D. B. N. v Glenn, 7 Harr. & Johns. 17. But it is contended on the part of the equitable plaintiffs, (the appellants,) that an action is given to them on Robert Hanson’s bond, by the acts of assembly of 1718, ch. 5; 1798, ch. 101, sub ch. 3, s 10. In an action of assumpsit between the legatee and the executor, the law will not imply a promise, except for a specific legacy; but here the action is for a breach of the condition of the bond, and is brought for the use of those interested, against the representative of him who failed to comply with the condition of his bond to the state, and to “discharge the duties required of him by law in the faithful performance of the office.” The state is the plaintiff, and the condition broken the cause of action. If the executor was living, can it be denied that he would be answerable in this form of action?’ He is represented by the appellee, Who is chargeable with his contracts, and answerable for his broken covenants. If the legatees were-driven to their action against the administrator de bonis non, and be compelled to institute suit against the administratrix of Robert Hanson, it would be such a multiplication of suits as seems to be guarded against by the acts of 1718 and 1798, by giving to all persons interested, an action in the name of the state on the bond. Upon the breach of the condition of the bond, the executor becomes indebted to the state in the amount of the penalty, for the use of those interested. The state is truslee foi the legatees, the debt accrues -upon breach of the condition, the executor is chargeable de bonis propriis, and his administratrix is chargeable in her representative character for his debts. The state, as trustee for the legatees, is a creditor, and brings this action. The administratrix of the executor is bound to account for property disposed- of by the executor, and not accounted for by him. Act of Ass. 1816, ch. 203, s. 3.
    2. The proceedings in the court below were commenced prior to those had in the orphans court, and of a different character. An application to the orphans court for an order to compel a settlement, does not preclude the party interested from his action on the bond. Act 1798, ch. 101, sub ch. 15, s. 19. The county court has jurisdiction in such'cases. 1798, ch. 101, sub ch. 14, s. 6. The defendant below, (the appellee,) by,her rejoinder tb the plaintiff’s replication, sets out, that certain proceedings were had in the orphans court, with-' out stating the nature of those proceedings. The proceedings in that court could not'have been of the same nature, because, the act of 1798 does not give to that court jurisdiction in an action on the testamentary bond. The administrator de bonis non may bé answerable for all claims iti the orphans court against the estate of Theophilits Hanson, (the testator,) and yet not answerable in the county court for legacies Which lie never received. The appellee should have stated in her rejoinder, the application which was made to the orphans court, with the record of the proceedings.
    8. The rejoinder is a departure from the plea — -the plea answers the declaration, but the rejoinder neither answers the replication, nor is it a continuation of the defence commenced hy the plea. The rejoinder does not support the plea. The plea alleges that Robert Hanson did perform the condition of the bond, &c. The rejoinder states, that certain proceedings were had in another court, and that that court decided that another person was answerable for claims against the estate of Theophilus Hanson. This is not a claim against his estate, but against the estate of Robert Hanson. This is a depart ture, and does not answer the replication. 1 Chit. Plead. 619, 627. Hays v Bryant, 1 H Blk. 253. Roberts v Mariett, 3 Saund 188. Richards v Hodges, 2 Saund. 84. Harding v Holmes, 1 Wils. 122. Chapman v Chapman, Cro. Car. 76, 77. L. Proprietary v Cockshut, 1 Harr. & M'Hen. 40.
    No Counsel argued for the Appellee.
   JUDGMENT AFFIRMED..  