
    Morgan vs. Slade, et ux.
    
    "Whether or not H rejoinder of no assets is a departure from the plea of performance in an. action upon a testamentary bond?
    Can the defendant by his rejoinder put in issue two separate and distinct facts to a replication assigning breaches for the nonperformance of the condition of a testamentary bond? Qucre
    
    On the pica of no assets* ■ v plene administravit* the onus probandi lies on the part of the plaintiff.
    Is the plea of no assets the same in effect as the plea of plene administravifi Querc
    
    If an executor, ’&c. neglects to return an inventory, is he bound for all debts and legacies &c? Qxiere
    
    An executor cannot give in evidence that lie had equally and pro-poi tionably, or nearly so, distributed the residue of the personal estate after payment of debts fre among the several lctatees»
    Appeal from the General Court., An action of debt was brought on the testamentary bond, executed on the 8th of February 1776, to the Lord Proprietary, on the estate of Edward Morgan, deceased, by the appellant, (the defendant iii the court helow,) as his executor. The defendant pleaded performance, to which the plaintiffs replied nonperformance, assigning breaches that the deceased, by bis will, bequeathed to his daughter Elizabeth, the female plaintiff, £300 on her arrival at age, &c. with interest, &c. and he also bequeathed to his daughter Susanna, £300 on. her an-ival at age, &c. with interest, &c_ that Susanna died intestate, whereby one sixth part of the said legacy, amounting to £50, became by the testator’s will due and payable-to the said Elizabeth, &c. And that the executor had not paid the said legacies, &c. The defendant rejoined no assets, and payment in the following manner, viz.
    “And the said-R. M. saith, that the said D. §. and Ev his wife, ought not to have or maintain their action afore-, said against him, by reason of any thing above by them in replying alleged, because he saith, that no goods and chattels, which were of the said E. M. at the time of his death, have come to, or been in the hands of him the said R. M., to be administered; and that he hath not in his hands tobeadministered, nor had he on the day of the impetration of the original writ in this cause, any assets, goods or chattels, which were of the said E. M. at the time of his death; and this he the said R. M. is ready to- verify; wherefore lie prays judgment, whether the said D. S. and E. his wife» there-aforesaid action against him to have or maintain ought, &c. And the said K. M. as to the breach in the replication of them the said D. S. and E. his jwife, above alleged, as to the nonpayment of the said legacies, he saith, that the said, ■D. S. and E. his wife, their aforesaid action against him to have or maintain, by any thing therein alleged, ought not, because he saith, that after the arrival to age of the said E. to wit, on the, &c. he the said R. M. paid- to the said E. whilst she,was sole, and before her intermarriage with the said I), the sum of £300, in form aforesaid bequeathed to her by the will of the said E. M. and the interest thereon due, as also the said sum of £50, the share or proportion of the said E. of the said £800 bequeathed to her as. aforesaid, on the death of the said S. togetherwith interest ibereon due, to wit, at Harford county aforesaid; and this he the said II. 'M. is ready to verify. Wherefore he prays judgment whether the said I). S. and E. his wife, to have or maintain their aforesaid action against him ought, &c.”
    To which the plaintiffs surrejoined assets, and nonpayment as follow, viz “And the said 1). S. and E. his wife, as to the first rejoinder of the said R. M. above alleged, from having and maimaiuing their action aforesaid against him ought, not to he precluded, because they say, that goods and chattels which were of the said E. M. at the time oí his death, did come to the hands of him the said R. M, to be administered, and that he hath in his hands to be administered, and liad on the day of the impetration of the original writ in this cause, assets, goods and chattels, which were of the sa.id E. M. at the time of his death; and this the said I). 8, and E. his wife, pray may be inquired of .by the country; and tlie said R. M. in like manner, &c. And the said D. 8. and E. his wife, as to the second rejoinder of the said I?. M. above alleged, their action aforesaid against him from having and maintaining, by any tiling '¿herein contained, ought not to be precluded, because they say, that after the arrival to age of the said E. to wit, on, &c. he the said ft. M. did not pay to the said E. whilst she was sole, and before her intermarriage with the said I). S.the said sum of .£300, inform aforesaid bequeathed to her by the will of the said E. M, and the interest thereon due, as also the said sum of £50, the share or proportion cf the said E. of the said £300 bequeathed to the said E. on the death of the said S. together with the interest thereon due, to wit, at Harford county aforesaid; and this the said D. 8. and E. his wife, pray may be inquired of by the country; and the said R. M. in like manner, and so forth.”
    1. The defendant at the trial a.t May term 1803, prayed the opinion of the court, and their direction to the jury, that before the defendant is bound to produce evidence on his part to prove that he had fully accounted for the estate cf jEdward Morgan, deceased, in the replication mentioned, it was incumbent on the plaintiffs to prove, that assets or personal property of the deceased had come to the hands of the defendant.
    Ciivse, Ch. J. 
       The court are of opinion, that it is incumbent, on the defendant to support the issues on his part, by proving {hat lie had not assets to pay the legacies' for which this suit is brought, or that lie lias paid the same, before plaintiff's adduce any proof to show that assets or personal property of Edward Morgan, had come to the hands of the defendant. The defendant excepted.
    2. The defendant then offered in evidence, that Edward Morgan, the testator, resided in Harford county, having due to him at the time of his death, which happened in the year 1773, about ¡01000 from different persons, which sum constituted, at the time of his death', the principal part of Ins personal estate, and which sum was afterwards, in the" year 1779, paid to defendant, his executor, in depreciated continental currency, whereby a large part of the testator's personal estate was sunk and lost. The defendant further offered in evidence, that he, as cxccutov, had equally and proportionably, or nearly so, distributed the residue of the personal estate among the different legatees named in the will of the testator.
    Chasf, Ch. J. The court are of opinion, that the evi'dence is inadmissible, and they refuse to permit it to go to the jury. The defendant excepted: and the verdict and judgment being against him, he appealed to this court.
    The cause was argued at the last term before Tilghjian. Buchanan, Nicholson, and Gantt, J.
    
      Johnson, (Attorney-General,) and Magruder, for the appellant,
    in their arguments contended, 1. That on the issue to the rejoinder of no assets, the onus probandi was on the part of the plaintiffs below. 2. That if an executor neglected to return an inventory, he was not bound for all debts and legacies. 3. That the replication was defective, in not averring that there were assets sufficient to pay the legacies. They cited and relied on the act of October 1778, ch. 20. Parson vs. Henry, 5 T. R. 6. Bull. N. P. 140. Erving vs. Peters, 3 T. T.688. Orr vs. Kaines, 2 Ves. 194. Quynn vs. The State, 1 Harr. & Johns. 36. Atkins vs. Hill, 1 Cowp. 284, 2 Com. Dig. 369, 458. Swin. 212, 229, 401, 420, 437. Esp. Dig. 261.
    
      Martin, and T. Buchanan, for the appellees,
    in their arguments, contended, 1. That the plea of performance was an admission of assets, and the plaintiffs below were not bound to aver assets in the replication. 2. That the re -
    
      joiiider of no assets was a departure from the plea of performance. 3. That the defendant could not, by his rejoinder to the replication, put in issue two separate and distinct facts. 4. "Whether or not the plea of no assets was in effect the same as a plea of plene administravit? 5. That on the issue to a pica of plene administravit, the Onus probandi was on the part of the defendant. 6. That if an executor neglected to return an inventory, he was answerable for all debts and legacies. 7. That after verdict it would be presumed that all essential evidence was submitted to the jury. They cited arid relied on Swin. 401. 11 Vin. Jib. tit. Executor, 380, pi. 152. 2 Show. 163. 14 Vin, Jib. tit. Inventory, 466. Toth. 183. Godb. 145. 146, 151. 13 Modi 346, 3 BIk. Com. 393. Rushton vs. aspinall, Doug. 683. Roe vs. Haugh, Salk. 29. Hawk vs. Crofton, 2 Burr. 890. Swin. 212, 229, 401.
    
      
      
        ) Done, 3, conferred. Sm*gg, 3. dissenter!.
    
   Tire court of appeals

conctimid in the opinion gives by the General Court in the second bill of exceptions, but dissented from that given in the first bill of exceptions.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED,  