
    *Wynn's Ex'or v. Wynn's Adm'rs. Wynn's Adm'rs v. Wynn's Ex'or.
    April, 1837,
    Richmond.
    Curator — Liability to Suit on Bond of Decedent — Effect of Judgment against. — When a court of probat, under the 24th section of the statute concerning' wills, appoints a person to collect and preserve the estate of a decedent until administration be granted, such appointee cannot properly be sued on a bond of the decedent. If he be sued and judgment rendered against him, ,a scire facias upon the judgment will not lie, after administration is granted, against the administrator, nor will the judgment be any bar to a new action against the administrator, upon his decedent’s bond.
    John Wynn in his lifetime executed a writing obligatory to W. Thornton executor of W. Wynn deceased, for 732 dollars 17 cents, payable on demand, with legal interest from the 3d of January 1828. In the hustings court of the town of Petersburg, at February term 1829, on the motion of Susan Wynn widow of the said John Wynn, Willis Cousins was appointed to collect and preserve the goods and chattels of John Wynn deceased, during the pendency of an appeal from a decision of that court, granting administration to the said Susan on the estate of the said John Wynn deceased; and thereupon he made oath according to law, and with certain sureties entered into and acknowledged a bond in the penalty of 120,000 dollars. On the 31st of October 1829, W. Thornton executor of W. Wynn recovered a judgment in the superiour court of Petersburg, against Willis Cousins curator of the estate of John Wynn, for the principal and interest mentioned in the said writing obligatory, and costs of suit, to be levied of the goods and chattels of the said Wynn in the hands of the said Cousins to be administered. . Cousins was acting under the appointment of the hustings court of Petersburg, at and before the court at which the judgment was rendered. *But at the same term at which the judgment was rendered, the appeal mentioned in the order of the hustings .court was affirmed. A scire facias then issued, setting forth that since the rendering of the judgment against Cousins, Susan Wynn the widow of John Wynn had qualified as administratrix on his estate, and had also intermarried with Edward Powell, and seeking execution against Powell and wife of the judgment against Cousins. A case was agreed between the parties, stating the facts as before mentioned, upon which the circuit court gave judgment for the plaintiff against Powell and wife, to be levied of the goods of their intestate; and to that judgment a supersedeas was awarded.
    Before obtaining judgment on his scire facias, W. Thornton executor of W. Wynn had likewise brought an action of debt against Powell and wife as administrator and administratrix of John Wynn, upon the same writing obligatory. The defendants pleaded in bar of this action the judgment obtained against Cousins, to which plea the plaintiff demurred; but the court, holding the plea to be good, overruled the demurrer and entered judgment for the defendants. To this judgment a supersedeas was also awarded.
    Leigh, for Thornton the executor of W. Wynn.
    Macfarland, for Powell and wife.
    
      
       Curator — Liability to Suit. — See Wilson v. Shelton, 9 Leigh 342.
      A curator may now “be sued in like manner as. an executor or administrator.” Va. Code 1849, p. 520, § 24 ; Va. Code 1887, § 2534.
    
   TUCKER, P.

These cases are certainly not without embarrassment, arising from the plaintiff’s asserting and prosecuting the same claim in two different forms, from a doubt as to which was most proper.

In the first place he instituted a. suit against a curator pendente lite, recovered judgment on the day when administration was . granted, and issued a scire facias to revive the judgment against the administrators. On this scire facias judgment was rendered for the plaintiff, to which judgment the administrators obtained a supersedeas; and the first case thus turns on the question whether an appointee under the 24th section of the statute of wills, 1 Rev. Code, ch. 104, p. 380, is liable to be sued for the debts due from the decedent. I am of opinion that he is not.

In England, the power to grant administration is in the ordinary, and the obligation to appoint an administrator was imposed by .the statute 31 Ed. 3, ch. 11. Thus it would seem that the subject of administrations was principally regulated by statute; and moreover, that so much of it as depended upon the common law was intimately connected with the ecclesiastical state. Hence it early became the object of legislation in Virginia, and a system was built up, conforming a good deal in its general outline with that of England, and referring so obviously to it, that the principles of the english adjudications have in this, as in most other branches of our jurisprudence, been our principal guide. It is obvious, however, that to our statute book we must mainly look for the law of the subject.

After having provided for the probat of wills and granting letters testamentary, our statutes proceed to the subject of administration, and ordain that the courts having jurisdiction shall grant administration to the representatives of the decedents who shall apply for the same, and if no person applies, then to any creditor. Provision is also made for the case of the executor’s refusal, by the appointment of an administrator cum testamento annexo. Still there were the cases of special and limited administrations, for which there seems to have been no specific provision until the act of 1785. Rot that such specific provision was necessary; since the general power, having reference to the system of jurisprudence on which our own is founded, may fairly be interpreted to comprehend a power to appoint all such administrators as could be appointed under the english law. Nevertheless the act of 1785, ch. 61, ? 20; 12 Hen. Stat. *at large,, p. 144, amended at the revisal of 1792, did provide for the appointment of a person to collect and preserve the estate of a decedent, during infancy of the executor, or until a suppressed will should be established; and by the act of 1789, ch. 13, § 5; 13 Hen. Stat. at large, p. 12, the general court and district courts were authorized ‘1 to grant letters of administration during the infancy or absence of an executor, or ad colligendum bona defuncti, or pendente lite, or until a will which may have once existed, but is destroyed, shall be established.” In the revisal of 1792, these provisions were amalgamated into one section, which forms the 24th section of our present statute of wills. It is observable that the language of the act of 1789 corresponds very closely with the authorities in the english law. Ifrom them we learn that the ordinary, in default of persons entitled to the administration, may appoint a person ad colligendum bona defuncti, who has power to collect and preserve the goods of the intestate, but cannot sell the effects; and being thus without the means of providing for payment of debts, I take it, was not liable to the action of the creditor. Toller 106, 107; 11 Viner’s Abr. 87. In like manner the act provides for such administrations, and in the succeeding section enacts that the bond and oath may be changed in such manner as to the courts may seem necessary.

It would seem indeed that by the english law these special administrators were not in all cases confined to the mere collection and preservation of the goods, but were most frequently appointed with full powers to act as administrators while their commissions lasted. But on the other hand it is equally clear that this was not always the case, but that where the ordinary could not immediately grant administration, he was in the habit of appointing a curator for the mere preservation of the estate, without capacity to be sued, or power to sell the estate for payment of debts. It is obvious that convenience *requires that this expansion and limitation of authority should both be in the power of the court. For a curator, with his narrow powers, would be ill suited to the case of an infant executor with prospect of a long minority; while on the other hand the appointment of an administrator with full powers durante minori astate, or du-rante absentia, or pendente lite, when a few months were likely to terminate his powers, would be both inconvenient and unjust. It would take from the executor those emoluments which flow from the administration, and moreover give to the temporary administrator the power to retain, even to the prejudice of the executor himself. The law, therefore, wisely makes provision for these various emergencies. The ordinary, if there is a prospect of a long minority or absence, or a tedious litigation, may in his discretion grant administration either with full powers or in a restrictive form, Toller 403, 404, 405, and sometimes, as we have seen, may appoint a curator, whose authority is strictly limited to the collection and preservation of the estate. Id. 107. And so by our law (statute of 1789, ch. 13, \ 5, before referred to) the court has power to grant administration during the infancy or absence of an executor, or ad colligendum bona, or pen-dente lite. Now, the first and last may be with full powers; but from its very nature, the administration ad colligendum bona defuncti must be limited in its character. And this variety in the powers of the appointees or special administrators will account for the provision in the 6th section of the same statute (which now forms the 25th section of the act in the revisal of 1819) that “the bond and oath in such cases shall be changed from the bond and oath in ordinary cases, as to the courts shall seem necessary. Thus where there is a special administration with full powers, the bond and oath would be to administer the goods &c. according to law, which of course implies the payment of debts, and the consequent liability to suit. *But where the curator is appointed merely to collect and preserve the estate, his bond and oath are varied accordingly, and bind him only to the collection and preservation of the estate, and its delivery over to the executor or administrator when required. Such a bond would afford no security to the creditor, if it were even conceded that he could sue the curator. In an action upon it, it never could be laid as a breach of the bond to collect and preserve the estate, that he had not paid the demand of tlie creditor. The bond in this case is probably of this character (though it does not appear in the record). If so, it is not perceived how an action could be maintained upon it for failure to pay off the amount of the judgment; and it is not to be supposed that the act of assembly designed to give a remedy against one whose official bond would not cover his devastavit in relation to the creditors.

The objection has been made that if a curator be appointed who is incapable of being sued, great injustice is done both to the estate and to the creditors; the latter being delayed in the recovery of their debts, and the former being consumed by interest. These are considerations, indeed, which must have much weight with the court of probat as to the proper course to be pursued, but do not affect the construction of the act. There may be much reason for the appointment of a special administrator instead of a curator, where the grant of letters testamentary or of administration in chief is likely to be long delayed ; but where it will probably be but temporary, all that is necessary is a curator to collect and preserve the estate, so as to have it ready for delivery over to the proper representative.

It remains but to say that the provisions of the 42nd section of the statute of wills apply alone to the curators mentioned in the preceding section, who being substituted for a defaulting and removed executor or administrator, are very properly invested with all their powers and capacities.

*Upon the whole, I am of opinion to reverse the judgment upon the scire facias, and enter judgment for the defendants.

Then, as to the action of debt brought by Thornton executor of W. Wynn against Powell and wife as administrators of John Wynn, I am of opinion that the judgment should have been given for the plaintiif. Having just come to the conclusion that an action cannot be maintained against a curator appointed under the 24th section of the statute of wills, and that a judgment in such action is void, and cannot legally be made available against the decedent’s estate; if that conclusion be correct, it follows that the plea of a former recovery against the curator, which was in no wise obligatory upon the estate, ca,nnot' offer a bar to an action against the regular ad-ministratrix, upon the original contract. Although it was unreversed and unannulled, and although a court cannot reverse its own judgments when they are collaterally brought before it, yet, quoad the assets of the estate, and quoad the administratrix, the judgment was a nullity; as much so as if a judgment were rendered against A.- to be levied of the goods and chattels of B. Such a judgment, so levied, would be no protection to the party. So here, if the plaintiif had proceeded to levy his execution on the goods in the curator’s hands, he would have been a tortfeasor, and trespass or trover would have lain against him. Now it would be monstrous to say that the estate should be absolved because the plaintifE had a judgment, in terms indeed against the estate, but which he dared not execute.

Again, the law authorizing no action against the curator, it is impossible that the administratrix can be bound by the judgment against him, or that a scire facias on that judgment could lie against her. Now the plaintiif had a good right of action against her on the bond. That right of action might be merged by a judgment *against her, or by a judgment which may be brought to bear on her. But it cannot be merged by the judgment against the curator, to which she is no party or privy, and for which neither she nor her intestate’s estate can be made liable. It is then the same thing as if there had been no such judgment, and the plea therefore offers no bar to the plaintiff’s demand against the administratrix upon her intestate’s bond.

It is said, however, that there are some curators against whom the action will lie. That is true; but the fact only develops another error in the plea. For, to make the plea a good bar, it ought to have been shewn that the curator was such an one as was liable to be sued. In this aspect also, the demurrer should have been sustained.

I am therefore of opinion to reverse t’he judgment, and to enter up judgment on the demurrer for the plaintiif.

Judgments in both cases reversed, and judgment entered for the defendants in the scire facias, and for the plaintiff in the áction of debt.  