
    Bishop v. Harrison’s Adm’r &c.
    February, 1831.
    (Absent Coalter, J.)
    Assumpsit against Administrator d. b. n. — Joinder of Counts — Statute of Limitations, — It seems, that in. assumpsit against an administrator de bonis non, counts upon promises made by the executor or a former administrator of the deceased debtor, as such, maybe joined with counts on promises by the deceased debtor himself, to save the statute of limitations; dubitante Green, J.
    Same — Same—Averments.—But, in such ■ case, the counts upon promises of the executor or former administrator, must distinctly aver the promises to have been made as executor or administrator; otherwise, they are bad upon general demurrer; per tot. cur.
    Benjamin Harrison qualified, and acted for some time, as executor of William Harrison’s will; but his authority (it appeared) was revoked ; and administration de bonis non of the testator’s estate with his will annexed, was granted to Richard Dunn. And then the appellant Bishop brought assumpsit, in the circuit court of Prince George, against *Dunn administrator de bonis non &c. to recover a debt claimed as due him by the testator. His declaration contained eight counts ; five, upon the promises of the testator in his lifetime ; one, upon the promise of the defendant, the administrator de bonis non, made after the administration was granted to him ; and two, upon the promises of Benjamin Harrison, made after his qualification as executor of William, and before his authority was revoked, in consideration of the debt due by the testator to the plaintiff ; but these two counts did not aver that the promises of Benjamin Harrison, were-made by him as the executor of William the testator. To the two counts founded on the promises of the executor before the revocation of his authority, the defendant demurred g-enerally, and the court sustained the demurrer. To all the other counts he pleaded the general issue, upon which the jury found for him. And judgment being rendered for the defendant, the plaintiff appealed from it to this court.
    Shands, for the appellant.
    Spooner and Allison, for the appellee.
    
      
       Administrators — Suits against — Joinder of Counts.— It is perfectly clear that in an action against an executor or administrator counts on promises by the executor as such and counts on promises by the testator may be joined, and this is the proper mode of declaring against executors or administrators to save the statute of limitations. Braxton v. Harrison, 11 Gratt. 55, citing principal case.
      See further, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
      Suits against Administrator d. b. n. — Promise of Administrator. — A suit may be brought against an administrator de bonis non on a promise made by the administrator to pay a debt of his intestate. Braxton v. Harrison, 11 Gratt. 57, citing principal case.
    
    
      
      Administrators — Promise to Pay Decedent’s Debt-Effect on Statute of Limitations. — To the point that where a debt against an estate is known to be just, and is about to be barred by the statute of limitations, after the death of the testator or intestate, the personal representative may make a promise to pay, which will prevent the operation of the statute, the principal case was cited in Smith v. Pattie, 81 Va. 665.
      In Seig v. Acord, 31 Gratt. 365, 370, it was held that a debt which is barred by the statute of limitation at the death of the debtor cannot be revived by the promise of the personal representative to pay it. Anderson, J., in delivering the opinion of the court, said that the principal case is not in conflict with this decision; that the opinion of the judges in the principal case were evidently given in reference to a case where the debt had not been barred in the life of the testator and the promise by the executor was not relied on to remove an existing bar, but to exempt the case from the statute of limitations. After quoting from the opinion of Judge Carr, to support his proportion, Judge Anderson says: “It seems to me. therefore, that as the law then stood [1831J, as well as now, a debt against the decedent, barred by the statute of limitations in his lifetime could not be revived and made a charge upon the estate by the promise of the executor or administrator to pay it. And, consequently, if it was a debt due to the personal representative, in his own right, he could not obtain it out of the assets and charge the estate with it.”
      See further, monographic note on “Debts of Decedents” appended to Shores v. Wares, 1 Rob. 1.
    
    
      
      Same — Suit against in Representative Capacity. — In Kayser v. Disher, 9 Leigh 359, the first count in the declaration alleged “that the said defendant executor as aforesaid,” by his promissory note, etc., was indebted, etc., to the plaintiff “as legatee;” and being so indebted, in consideration thereof, “he, the said defendant, as executor as aforesaid, promised, etc.” This was held to be distinctly the form of the declaration against an execu tor in his representative character. Epes v. Dudley, 5 Rand. 437, and Bishop v. Harrison, 2 Leigh 532, were cited to support the decision.
    
   CABEEE, J-

The first question is, whether in this action of assumpsit against the administrator de bonis non, to recover a debt due from the testator, it was competent to the plaintiff to join counts on promises by the executor as executor, with counts on promises by the testator, in order to save the statute of limitations ?

It is perfectly clear, that in an action against an executor or administrator (I mean an original administrator) such counts may be joined ; and that that is the proper mode of declaring against executors, or administrators, to save the statute of limitations ; 2 Wms. Saund. 117, e; 1 H. Black. 102; Epes’s adm’r v. Dudley’s adm’r, 5 Rand. 436. This position being admitted or established, it seems to me, that it must follow, as a necessary consequence, that such counts *may also be joined, where the 'action is brought against the administrator de bonis non. It is clearly competent to an executor, by his promise to pay a debt of the testator, to exempt the case from the operation of the statute of limitations; and it is no devastavit in him to do so. If the executor die or be removed before he has paid the debt, it still remains a debt due from the testator; and the obligation to pay it devolves on the administrator be bonis non, who comes in the place of the executor, and is the representative of the testator. Why, then, may not the creditor, in an action against the administrator de bonis non, avail himself of the promise by the executor in the same manner as he might have done, if the action had been brought against _ the executor himself ? It is said, there is no privity between the administrator de bonis non and the executor. Even if this were so, I do not see that it would affect the question under consideration. The right of the plaintiff to proceed against the administrator de bonis non, for a debt due from the testator, and which has been saved from the operation of the statute of limitations by a promise of the executor, depends, as I conceive, not so much on the idea of a privity between the administrator de bonis non and the executor, as on the right of the creditor to the debt due from the testator, and the obligation of the administrator as the representative of the testator, to pay all his debts, so far as the unadminis-tered assets will extend. But, I am of opinion, there is a privity of estate between the administrator de bonis non and the executor. I know it was said by one of the judges of this court, in Wernick’s adm’r v. M’Murdo, 5 Rand. 51, 55, that there is no privity between them. No person can respect that judge’s opinions more than I do ; but I must differ from him on this point. Besides, that was not the question before the court in that case : the real question was, whether it was competent for the administrator de bonis non to maintain a suit against the representatives of the deceased administrator, for assets of the intestate, which had been wasted, or converted to his own use, by the first administrator ; *and it was decided, not on the ground of the want of privity, but on the ground that the commission of the administrator de bonis non did not extend to such assets. In Dykes & co. v. Woodhouse’s adm’r, 3 Rand. 287, the question was, whether an administrator de bonis non was entitled to an action of debt, or scire facias on a judgment obtained by an executor for a debt due to the testator. It appears from the authorities cited in that case, that the courts of England had formerly, for a great length of time, decided that the administrator de bonis non had no such right; and the principal ground of their decision was, that there was no privity between him and the first administrator. Two of the three judges of this court, who decided Dykes & co. v. Woodhouse’s adm’r, did not say whether, in their opinions, there was or was not a privity between them: they did, however, decide, in opposition to the former decisions of the english courts, that the administrator de bonis non might enforce the former judgment, either by action of debt, or by scire facias ; and if I were called to judge, by their arguments as reported, I should say, they thought there was a privity. Judge Brooke, the other judge, expressed himself positively, that there is a privity of estate. And whatever may have been the opinion of the english judges in former times, I am inclined to believe, that at the present day, it is admitted in England, that there is a privity between the administrator de bonis non, and the former administrator. This manifestly appears to have been the opinion of lord Kenyon and of Ashhurst justice, who decided the case of Hirst, adm’r &c. v. Smith, 7 T. R. 182. That case was assumpsit by an administrator de bonis non, to recover a debt due to the plaintiff’s intestate. The declaration contained one set of counts on promises made by the defendant to the intestate, and another on promises made to the former administrator. The plea was the statute of limitations. A verdict having been found for the plaintiff, the counsel for the defendant moved in arrest of judgment, “because no promises was laid to have been made to the plaintiff, but to the former ^administrator, between whom and the plaintiff there was no privity.” Lord Kenyon said, “ The defendant’s objection rests on this broad foundation, that there is no privity between the former administrator and the plaintiff, the administrator de bonis non. But that proposition certainly is not true in its extent. Suppose the former administrator had entered into an agreement for the sale of the lease of a chattel interest belonging to the intestate, and had died before the agreement was completed, the administrator de bonis non, stands in such privity of estate, that he would be compelled to carry the agreement into execution.” And Ashhurst, J., said, “As it is alleged that the promise was made to a person from whom the plaintiff deduces his title, and between whom and the plaintiff there is a privity of estate in law, it is the same as if it had been stated that the promise had been made to the plaintiff himself, because the law recognizes the relation.” Here, then, is a case where the administrator de bonis non was plaintiff claiming the benefit of a promise made to the former administrator, and which was decided in his favor, expressly on the ground of privity. The case supposed by lord Kenyon, is more opposite to that now before us ; a case where the administrator de bonis non would be defendant, and where the effort would be to bind him to the performance of a promise made by the former administrator; and he says he would be bound on the ground of privity. This ^produces a symmetry in all the parts of the law in relation to this subject. An administrator de bonis non, when plaintiff, will be entitled to the benefit of judgments and promises rendered for or made to the executor or former administrator, according to the case of Dykes & co. v. Woodhouse’s adm’r and Hirst v. Smith; and, when defendant, he will be subjected to judgments and promises rendered against or made by the executor or former administrator, for debts due from the testator or intestate ; Cro. Car. 167.

Upon the whole I am decidedly of opinion, that, if the two counts founded on the promises of the displaced executor, *in this case, had been properly framed, the demurrers to them ought to have been overruled.

But there is a fatal objection to them. The promises laid in them, are not stated to have been made by the executor as executor ; which is absolutely necessary to justify their being joined with counts on promises made by the testator ; Brigden v. Parks & al. ex’rs &c., 2 Bos. & Pul. 424 ; 1 Chit, plead. 205, 6. The reason of this is obvious : the judgment on promises by the testator, would be de bonis testatoris ; the judgment on promises by the executor not stated to have been made by him as executor, would be de bonis propriis. On this ground, I think the judgment should be affirmed.

CARR, J.

Agreeing with my brother Cabell in the view he has taken of this subject, I should not have said a word but for the purpose of correcting or rather explaining a proposition of mine, too broadly stated, in Wernick v. M’Murdo.

The demurrer to the counts in the declaration founded on the promises of the displaced executor, presents two questions : Whether the assumpsit of the executor can bind the administrator de bonis non? and if it can, Whether the executor’s assumpsit be well laid in those counts ?

That the promise of an executor, or of an administrator to whom full administration is committed, will bind the estate of the testator or intestate, so far at least as to take the case out of the statute of limitations, is well established. All the books of practice give us the forms of declaring in such cases, and shew us also, that these promises may be joined in the same declaration with counts on promises of the testator or intestate, for the reason, that the judgments will be the same on both, a judgment de bonis testatoris. But, it is said there is no privity between the executor or first administrator and the administrator de bonis non ; and Wernick v. M’Murdo is referred to. Upon examining-that case, I find that I have said, in so many words, there is no privity between them. I was speaking then of the distinction *between the executor of an executor, and the administrator de bonis non : 'the privity of representation was in my mind: and, as the administrator de bonis non does not claim by, through or under, the former executor or former administrator, I said there was no privity between them. The proposition, taken as I intended it, is correct; but certainly not so, in its broadest extent. There is that sort of privity of estate between them, which enables the executor or first administrator to bind the administrator de bonis non, by his acts properly done while in office. The case put by lord Kenyon in Hirst v. Smith, is apt to illustrate this : he says “suppose the former administrator had entered into an agreement for the sale of a lease of a chattel interest belonging to the estate, and had died before the agreement was completed, the administrator de bonis non stands in such privity of estate, that he would be compelled to carry that agreement into execution.” And this is the voice of reason, as well as authority. The executor or administrator represents the testator or intestate completely ; he has the legal estate ; and it is necessary that he should have it, both for its management, and for the safety of those who deal with him. When he has made a contract as to any of the property, which he had a perfect right to make, and another has thereby gained an interest in that property, his subsequent death or removal cannot affect that interest. In truth, the question does not seem to me to be one of privity, but of power. Here was a debt claimed of the testator : to whom was the creditor to look ? To the representative. He applies to the executor while the debt is yet untouched by the statute of limitations, and tells him, here is a debt due me by your testator, and here is the proof of it: it is a debt due by simple contract, and I must sue at once. The executor replies, I see the debt is just, and I tell you befpré this witness, that I will pay it; therefore, you need not bring suit, but give me time, till money of the estate comes to my hands. The creditor waits; the executor dies ; an administrator de bonis non is appointed : shall he say to the creditor, the promise of the executor does not *bind me, nor take your debt out of the statute ? Surely, no. The promise does bind him, or rather the estate, at least so far as to remove the bar of the statute; for the executor was clothed with full power to do what he did.

As to the other point, the counts in question are fatally defective. The promises of the executor on which they are founded, are not laid, as they ought to have been, as promises made by the executor as executor.

GREEN, J.

I concur in affirming the judgment upon the demurrer upon the defect of the counts in question, in stating the character of the assumpsit by the executor of Harrison. Upon the general question, whether in an action against an administrator de bonis non for a debt originally due by the decedent, the plaintiff can avail himself to any purpose of the assumpsit of the executor or former administrator, I refrain from giving any opinion, having formed no decided one, as the question does not arise in the cause. My impression is, however, that he cannot: and that there is a difference in principle, between the case of a suit by an administrator de bonis non and that of a suit against him, and between the effect of an assumpsit by a debtor of the decedent, made to the former administrator, and an assumpsit by a former administrator to a creditor of Ihe estate.

BROOKE, P.,

said, his impressions upon the general ‘question which had been discussed, concurred with the opinion of Judge Cabell upon it; but it was notnecessary to decide it; since, upon the other point, the fatal defect of the particular counts ip question, the judgment must be affirmed. 
      
      Equity Jurisdiction — Determination of Property Rights. — In Bush v. Martins, 7 Leigh 320, it was held that a party in possession of slaves, and claiming them by the former owner’s absolute gift in his lifetime, cannot come into equity to be quieted in his title against the donor’s executory legatee, to whom the slaves are bequeathed in the event of the claim ant’s death without leaving issue. Carr. J., in delivering, the opinion of the court, said; ‘ T think there can be no sound distinction taken between this case and that of Randolph v. Randolph. The principle there decided, is, that the court has no jurisdiction to call before it a remainderman whose right may never come in esse, at the instance of a person in possession, and claiming a right adverse to his.”- Tucker, P„ in his concurring opinion, said: “The case of Randolph v. Randolph is, I think, conclusive of this; and it was decided, not only upon express authority, but in strict conformity with the general principles of the court of chancery, which disclaims any interference with legal titles. In this case, though the interest of the remaindermen is but contingent, yet their title, such as it is, is a legal title, and cannot be drawn in question in equity. The decision of that court upon the naked question of title, in a case where there is not, and never may be, a subsisting dispute with respect to the right of property, would indeed be an anomaly.”
      See further, monographic note on Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
     