
    
      C. J. Shannon v. L. H. Dinkins, administrator of John W. Sylvester.
    
    When the plaintiff to a plea of plene administrravii replies that the defendant had assets, whereupon issue is joined, the burden is on the plaintiff, who must prove that assets existed, or ought to have existed, at the time mentioned in the plea. Any devastavit which has caused a failure of assets, may in this issue be given in evidence by the plaintiff, and the jury must find assets to the amount of the failure, and not find a devastavit.
    
    Where an estate was ordered by the Court of Equity to be sold for division, and the proceeds to be paid to those entitled, one of whom had died intestate, leaving a widow and children, and the share of one of the children was paid to her guardian, (who also had administered upon said intestate’s estate, after the order for sale, but before distribution,) it was held, that in an action against him as administrator, such receipt by him as guardian would not sustain a replication of assets to his plea of plene admwnteVravvt*
    
    
      Before Mr. Justice Waedlaw, at Sumter, Extra Courtr July, 1847.
    ACTION OF DEBT ON JUDGMENT.
    Pleas: 1. — Nul iiel record. Upon this, issue was joined.
    
      2. — Plene administravit.
    
    3. — Special—That defendant had no assets at the commencement of the suit, or at any time since'.
    With the pleas was filed an affidavit that the third plea is true, and that no account has been filed with the second, because there have been no receipts or expenditures.
    
      Replication to the second Plea. — That the defendant hath not fully administered, but on the day, &c. had divers goods, &c.
    
      Replication to the third Plea. — That the defendant, before the said day, had divers goods, &c.
    Both the replications concluded to the country, and issues were joined.
    The record was produced of a judgment, C. J. Shannon v. John W. Sylvester, entered 16th March, 1830.
    The following case appeared :■ — Asbury Sylvester, (father of John W.) by his will, dated in 1807, directed that his wife Martha should have the use of certain buildings, with 40 acres of land and certain slaves, during her life, and at her death, “all to revert” to her four youngest children, Demar-cus, Mansell, John W. and Mary. Asbury died, leaving his widow Martha, and these four, besides other children, surviving him. The widow enjoyed the land and negroes during her life, and died in 1842. Before her death, Mary had intermarried with one Johnson, and John W. had died intestate, leaving a widow, Sarah, and two children, Mary A. and Sarah J. as his heirs and next of kin. Some agreement was made concerning the 40 acres of land, under which it yet remains undivided.. In 184á a bill in equity was filed in Lancaster District by Demarcus S. against Mansell, Johnson and wife, and the widow and children of John W. praying a division of the negroes, twenty-one in number. Mansell was appointed guardian ad litem of the children of John W. In February, 1843, a decree was made, confirming a return of Commissioners, and directing that the negroes should be sold by the Commissioner in Equity, and that the proceeds of the sale should be paid one-fourth to Demarcus, one-fourth to Mansell, one-fourth to Johnson, and the remaining fourth in three equal shares to Sarah and her two children. The notes taken at the sale to be transferred in payment. The sale was made in March, 1843. In October, 1843, the defendant, L. H. Dinkins, became administrator of John W.. Sylvester, deceased, but he has never made any return to the Ordinary. In October, 1844, he (L. H. D.) became guardian in chief of the minor Sarah J. S., and in December, 1844, as such guardian, he received from the Commissioner in Equity $680 77, the share of his ward in the proceeds of the sale. The plaintiff, C. J. Shannon, sent a letter to the Commissioner about the time of the sale, recognizing the authority of one Little, whom he says “ being interested, he has employed to attend the sale” for him.
    The defendant, in argument, insisted somewhat upon the form of the replications, that the defendant has received — not that he ought to have received, and has not.
    The Circuit Judge thought that the intestate had an interest in both the land and negroes, which was subject to his debts before distribution — that the interest in the land was not properly assets, with which the administrator was chargeable, but could be reached by a judgment of assets of quando acciderint — that the defendant had received no goods, ail having been wasted and eloigned after the intestate’s death, and before the appointment' of an administrator, and as it would be inequitable to throw the whole burden of this plaintiff’s debt upon the share of the child, whose guardian the defendant was, and who might thus be left to pursue in Equity co-distributees, perhaps insolvent; so it was not here strict law to regard the money which the defendant had received as the property of the intestate, for the right of the intestate was to an undivided share in negroes; no negroes had been received, or could have been received, by the administrator, nor has he been a party to any partition. The recourse of creditors is either through the administiator to the specific ne-groes, or directly to the persons who have improperly received shares of the fund produced by the sale. The fault of the administrator, if any, was, that his rights were not interposed in Equity before the distribution of the fund; but the decree, and even the sale, preceded his appointment. What notice he had, and what chance there was of subsequent interposition, did not appear, and that this matter should be left to the tribunal which created and distributed the fund.
    Under his directions, the jury rendered a verdict for the plaintiff upon the plea nul tiel record, and for the defendant upon the other pleas.
    The plaintiff moved before the Court of Appeals for a new trial—
    Because he was entitled to a general judgment against the administrator, not merely quando acciderint, on the proof made that he had neglected to secure and collect a fund belonging to his intestate, and that having received a part of such fund as guardian of one of the children of the intestate, such part is assets in his hands as administrator.
    Because this evidence is admissible under the general traverse by the replication to the pleas of plene administravit and no assets.
    J. M. DeSaussure. for the motion.
    J. S. G. Richardson, contra.
    
    When plene administravit is pleaded, the onus of showing assets lies on the plaintiff. (2 Stark. Ev. 554.) The third plea has not been questioned, and the authorities show that it is one recognized by law. (1 Chit. PL 430; Com. Dig. Pleader, 2 D 9.)
    Upon the case, as made by the pleadings and the proof, the first question is, was the money received by defendant from the Commissioner in Equity assets of his intestate? The negroes — not the money — belonged to the intestate, and now belong to his estate. To the bill in equity his representative was no party. — indeed, when the decree was made and the negroes sold, he had no representative. Before the money was received by the Commissioner, or the .guardian, the decree of the Court had declared to whom it should belong — when received by the Commissioner it was in custodia legis, and it is now quasi in the same situation. Can this Court declare it to be assets ? — or should not this matter be left to the Court which directed the sale and created the fund, and in the hands of whose agent it now is ? According to the rules of equity, the money is in possession of the ward, (Davis v. Rkame, 1 McC, Ch. 191; Daniel v. Daniel, 
      
      2 Rich. Eq. 115,) and the defendant holds it merely as the servant of the Court. To declare the money in this proceeding to be assets may work injustice to the ward, because she will have to pay the whole debt, and may not be able to recover any thing from her co-distributees; and to the defendant, because, under the faith of the decree, he may have expended a portion of it on his ward; and not to declare it assets cannot work injustice to the plaintiff, because he knew of the proceedings in equity, and could at any time have taken out letters of administration and applied to the Court for the fund.
    The next question is, can the defendant be made liable for neglecting to pursue the property, or to apply to the Court of Equity to have the proceeds of the sale declared assets; or, in other words, has he been guilty of a devastavit 7 The defendant has never had possession of the property: before he became administrator it was sold under the order of the Court, and what had become of it was not proved. It had certainly been taken possession of by the purchasers. When a third person takes the goods of a testator “ before the rightful executor hath taken upon him, or proved the will, in this case, he (the third person) may be charged as executor of his own wrong, for the rightful executor shall not be charged but with the goods which come to his hands after he takes upon him the charge of the will.”- — Read’s Case, 5 Coke, 34. The case before the Court is stronger in favor of the defendant than Read’s Case was in favor of the rightful executor; for here the defendant is an administrator, and had no title to the goods until invested with the office by the Ordinary; whereas an executor may take the goods immediately upon the death of his testator. Here also the goods were declared to belong to third persons by the judgment of a Court, which, if not conclusive as a judgment in rem, was at least entitled to the highest respect. The true question is, has the defendant, in failing to pursue the property or the fund, been guilty of fraud-or collusion; for in Com. Dig. Assets (D.) it is said, “goods in possession of the testator at his death, though the property and possession are by the law vested .in the executor, yet if without fraud or collusion he never had actual possession of them, shall not be assets to charge him.” That the defendant has not been guilty of fraud or collusion, the circumstances of the case show conclusively; and Thomas v. White, 3 Littell R. 177, is authority to show that in respecting the decree of the Court of Equity he will be protected. Fairfax v. Fairfax, 5 Cranch, 19, was an action of assump-sit against an executor who pleaded non assumpsit and plene administravit. The jury found the following verdict: “ We of the jury find the issues for the plaintiff, and assess the damages to two hundred dollars,” &c. A writ of error was sued out, and the error assigned was, that the jury had not found the amount of assets in the hands of the defendant to be administered. Marshall, C. J. “The verdict ought to have found the amount of assets in the hands of the defendant to be administered. An executor is liable for the amount of assets in his hands, and no more. The issue really is, whether the defendant has any, and what amount of, assets in his hands.” Giles v. Dyson, 1 Stark. R. 32, was an action against an administrator in which plene administravit was pleaded. The question was, whether the administrator was liable for certain debts due hjs intestate, included in the inventory, and not marked desperate. Lord Ellenborough, “You must prove that the debts have been paid. Upon the plea of plene administravit it is necessary to prove that effects came into the hands of the defendant; this is the universal practice.” These two authorities — Fairfax v. Fair-fax .and Giles v. Dyson — show that, even conceding the defendant’s liability, in another tribunal, or, perhaps, in another form of proceeding in this Court, for neglect, yet, as no assets ever actually came to his hands, and as there has been no proof of fraud or collusion, he cannot be made liable under the pleadings in this case.,
   Wardlaw, J.

delivered the opinion of the Court.

The essential part of the plea of plene administravit is, that the defendant has no goods which were of the testator or intestate at the time of his death, in the hands of the defendant as executor or administrator to be administered, nor had at the commencement of the suit, nor ever since: that he hath fully administered, seems superfluous. (2 Williams’ Executors, 1201 — 3.) The third plea in this case seems to be embraced in the second.

When the plaintiff to a plea of plene administravit replies that the defendant had assets, whereupon issue is joined, the burden is on the plaintiff, who must prove that assets existed, or ought to have existed, at the time mentioned in the plea. Any devastavit which has caused a failure of assets, may on this issue be given in evidence by the plaintiff, and the jury must find assets to the amount of the failure, and .not find a devastavit. (2 Williams’ Executors, 12L2.) Nothing in the pleadings here, then, hindered the evidence which the plaintiff offered.

But did the plaintiff show a devastavit which produced a failure of legal assets 1

“All those goods and chattels, actions and commodities, which were of the deceased, in right of action or possession, as his own, and so continued to the time of his death, and which, after his death, the executor or administrator doth get into his hands, as duly belonging to him in the right of his executorship or administratorship'; and all such things as do come to the executor or administrator in lien or by reason of that, and nothing else, shall be said to be assets in the hands of the executor or administrator, to make him chargeable to a creditor or legatee.” (Shep. Touch. 496.)

In Read’s Case, 5 Co. 34, it was resolved “that the rightful executor shall not be charged but with the goods which come to his hands after he takes upon him the charge of the will.”

We do not propose at all to enquire what degree of wilfulness or blameable default must enter into the act of negligence or careless administration which has defeated the rights of creditors, to constitute such act a devastavit: but treating assets which should have been received as assets received, for the present purpose it is enough to say that the character of the act here charged as a devastavit has not been investigated. Supposing it to have been wilful and blameable, was it such as to disprove the plea of plene administravit ? To disprove the plea, a creditor, suing an executor in an action at law, can bring forward in evidence only legal assets. (2 Williams’ Executors, 1033.) • Without attempting here any general distinction between legal and equitable assets, or holding that all assets are necessarily equitable which a creditor cannot come at without the aid of a Court of Equity, there seems no difficulty in holding that the fund concerning which negligence is here imputed to the defendant, did not constitute legal assets.

The intestate owned at his death an undivided share of negroes, which were to be divided upon the happening of an event not then come. After the event, and before -the grant of administration, the negroes were sold, and thus the intestate’s goods were wasted and eloigned. As to the defendant, subsequently appointed administrator, the sale and the proceedings under which it was made, were res inter alios: he had no legal claim upon the fund thence arising, nor-any right of action (independent of his right to pursue the negroes eloigned,) which could be said to.be a thing come to him in lien or by reason of his intestate’s goods. If he had chosen to confirm the sale, and had presented his equitable rights to the Court of Equity before distribution of the fund, it may be that under the principles recognized in the cases of Shubrick v. Shubrick, 1 McC. Ch. Rep. 406, and Trescot v. Trescot, Ib. 430, the distribution of the fund might have been stayed, and justice to the creditors of John W. Sylvester have been saved. But it is seen that the order of the Court of Equity directed that the notes taken at the sale should be transferred in payment to the persons between whom the -fund was directed to be distributed: to what extent distribution had been made before the grant of administration we know not, nor what obstacles might have existed against the establishment of the equity which now seems to have been plain on the part of the administrator. No fraud or collusion concerning the order in Equity is shown against the defendant. It would then be rash in this Court to hold the defendant liable for imputed negligence in regard to an equitable right supposed to have been in him as administrator, when that right has been wholly defeated by the action of the Court of Equity, and that Court is open to all who would enquire into the propriety of its proceedings, or of defendant’s conduct in relation to them.

The share of his ward recovered by the defendant stands upon the same footing as the remainder of that portion of the fund which went to the next of kin of John W. Sylvester. This share the defendant received as guardian; for it, he is liable to account, as guardian: how much he may have already expended as guardian, we know not. Because it is in his hands, notwithstanding his accountability, to make him liable for it to creditors, would, under the circumstances, be just the same as to make him liable because he had not received it. The motion is dismissed.

SECOND CASE.

Shannon & McDowell v. L. H. Dinkins, administrator.

The statement of the case, grounds of appeal, and opinion of the Court, are the same as in the preceding case. Motion dismissed also.

Richardson, J. O’Neall, J. Evans, J. and Frost, J. concurred.

Withers, J. having been of counsel, gave no opinion.

Motion refused.  