
    CASE 12 — PETITION ORDINARY
    DECEMBER 15.
    Lusk vs. Anderson’s Administrator, &c.
    ArPEAL, FROM GARRARD CIRCUIT COURT.
    1. The act of the legislature, passed 23d February, 1846, (General Acts, 1846, page 53,) authorizing heirs, devisees, or distributees, to prosecute or defend an action brought by or against the executor or administrator of the decedent, was not repealed by the Revised Statutes; being an act regulating proceedings in civil cases, it is expressly excepted in the repealing clause.
    2. An administrator has no power to employ counsel to prosecute a person charged with the murder of his intestate, and bind the estate for the fee. (Bacon’s Air., col. 4, title Executors and Administrators, passim ; 2 Williams on Executors, page 1534, et passim.)
    
    3. Judgment in personam cannot be rendered in an action against an administrator upon a note, given by him to employ counsel to prosecute persons charged with the murder of his intestate, where the petition shows that the note was not executed in his individual, but in his “fiducial capacity,” and judgment is asked against him in the latter capacity.
    Lusk sued Hopper as administrator of Anderson, upon a note due 21st July, 1857, for one thousand dollars, executed to Lusk by Hopper, as administrator, for the professional services of Lusk in prosecuting Lemaster and Clark, who were charged with the murder of Anderson. The heirs of Anderson having made the affidavit mentioned in the opinion, were permitted to defend the suit. Verdict and judgment having been rendered for the defendants, Lusk prosecutes this appeal.
    
      S. Turner for appellant—
    The act of 1846 was repealed by the Revised Statutes, and has never been re-enacted.
    The affidavit made by the heirs of Anderson is insufficient; and their answer does not present any valid ground of defense to the action. The note was executed for a good and valuable consideration, which is not impeached. The administrator had legal authority to employ counsel to prosecute persons charged with the murder of his intestate. Lusk was entitled to recover under the evidence in the cause, and the court erred in instructing the jury to find for the defendant. In any event, Lusk was entitled to a judgment, in personam,, against Hopper.
    John Si-iucic on same side — ■
    The proof shows that Lusk made an able and vigorous prosecution, and that the fee was not excessive. The administrator had legal authority to employ him. The statute allowing heirs to defend suits against an administrator does not apply to this case. If, however, they can defend, their answer and the proof are not sufficient to defeat Lusk’s right to recover. The note shows a good consideration on its face. Authorities cited: Thompson vs. Buchanan, 2 J. J. Mar., 420; Tribble vs. Oldham, 5 J. J. Mar., 144.
    A. A. Burton for the heirs—
    The administrator had no authority to bind the estate. (2 Williams on Executors, 1534.) The estate of the intestate consisted of land, and the administrator could not, by his contract, in effect render the heirs liable. (3 Bibb, 529; 2 Bibb, 609; 2 Williams on Executors, 1504.)
    G. W. Dunlap on same side—
    The note was not executed for the benefit of intestate’s estate, nor for any valid consideration inuring to the estate, nor on account of any liablity or obligation of the intestate or of his estate. Its execution was in fact prejudicial, rather than beneficial to the estate. Judgment could not properly be given against Hopper in personam. The circuit court properly permitted the heirs to defend the action.
   JUDGE WOOD

DELIVERED THE OPINION OE THE COURT:

The first question made upon this record is this, namely: “ Did the circuit court err in allowing Lemaster and Clark, with their wives, to defend the action of Lusk against Anderson?” We think not.

By the act of our general assembly, approved 23d February, 1846, (see General Acts, 1846, p. 53,) it is provided that in any action or suit instituted by or against any executor or administrator, the heirs, devisees, or distributees, or any of them, or the husband of any such heir, devisee, or distributee, might appear in court where such action or suit is pending, and make oath before such court that he or she believes that said executor, or administrator, is either prosecuting or defending such suit in bad faith, and to the prejudice of the estate represented by the executor or administrator; and, thereupon, move the court to permit him, or her, by counsel or in person, to prosecute or defend the action.

Upon such affidavit being made, it is the duty of the court to allow the party who has made it to prosecute or defend the action.

Lemaster and Clark were the husbands of the only heirs of Anderson, whose estate was represented by Hopper, the administrator.

They made, in substance,the affidavit required by the statute. Indeed, their affidavit stated more than was required by the act.

A proper case was made for allowing the heir to defend, instead of the administrator.

But it is said the act of 23d February, 1846, was repealed by the Revised Statutes, and has not been re-enacted.

This act was not repealed by the Revised Statutes. It was an act regulating proceedings in civil cases, as appears from both its title and body.

Statutes regulating proceedings in civil, criminal, and penal cases, are expressly excepted in the repealing clause of the Revised Statutes.

The next question presented is this : Had the administrator any power or authority to give such an obligation as the one executed by Hopper to Lusk, and thereby bind the estate of his intestate for its payment?

We do not think he had any such power or authority.

It is no part of the duty of an administrator of the estate of a person supposed to have been murdered to employ counsel to prosecute the murderer.

He cannot bind the estate of such decedent for compensation agreed to be paid to counsel under such employment.

If an administrator appropriate any part of the assets in his hands to the payment of counsel employed by him to prosecute one charged with the murder of his intestate, undoubtedly he would be guilty of a devastavit.

Such acts are wholly inconsistent with the theory of the existence of an administrator and the nature of his office. (Bacon's Abridgment, Title Executors and Administrators, vol. 4, passim; Williams on Executors, vol. 2, p. 1534, et passim.)

As a necessary consequence, there could be no judgment in this action, in view of the facts proved, against Hopper to be levied of the assets of Anderson’s estate.

The proof established the facts, that the note sued on was given for no pre-existing debt against the estate, nor for any consideration which was beneficial to the estate, but for the professional services of Lusk in prosecuting Lemaster and Clark, who were charged with the murder of Anderson.

It would have been erroneous had judgment been rendered against Hopper in personam, because the petition shows that he executed the obligation sued on in his “fiducial capacity,” and not as an individual. It shows that there was no intention upon the part of Hopper, in executing the obligation, to bind himself personally, nor his estate. Judgment is accordingly asked against him in his “ fiducial capacity.”

In the face of such allegations and prayer, the circuit court could not properly have allowed judgment against Hopper ■personally.

Some question is made, in argument, as to the sufficiency of the answer of Lemaster and Clark. In our opinion, the answer is good, and stated matter sufficient to defeat the action of plaintiff.

We do not find any error in the record; wherefore, the judgment of the circuit court is affirmed.  