
    Allen and others, administrators of Irwin against Irwin and another, administrators de bonis non cum testamento annexo of Irwin.
    In Error.
    THIS was a writ of error to the Common Pleas of Mifflin county.
    It.was a summons issued by. the defendants in error, the plaintiffs below, who were administrators de bonis non cum testamento annexo of James Irwin deceased, against the defendants, who were administrators of George Irwin deceased, executor of-the said James Irwin, for “ debt by assumpsit, “ for money had and received, andmoney paid, laid out, and “ expended, not exceeding 5000 dollars.” The plaintiffs afterwards, on the 8th June, 1809, filed the following statement:
    The plaintiffs in this suit demand of defendants, the sum of three thousand dollars, as well for divers sums 'of money by the said George Irwin in his lifetime, to wit, the first day of January, 1802, at the county aforesaid, had, and received to and for the use of the said James Irwin in his lifetime, as also for divers sums of money by him, the said James Irwin in his lifetime, for him the said George in his lifetime, to wit, the same day and year aforesaid, at the special instance and request of the said George, lent and advanced, as also for divers sums of money had and received by the said George 
      
      Irwin in his lifetime, to wit, the first day of January, 1804, to andfor the úse of the said James Irwin and John Ross, as administrators of the said fames Irwin deceased, as also for divers other sums of money, had and received by the said George Irwin in his lifetime, to wit, the day and year last aforesaid, to and for the use of the estate of fames Irwin aforesaid, deceased. And, whereas the said George Irwin ^11 h's lifetime, was by the said James Irwin in his lifetime, to wit, the thirtieth day of June, 1798, constituted and appointed with William Sterrett, executors of the testament and last will of the said James Irwin; and, whereas after-wards, and after the death of the said James Irwin, to wit, the seventh day of November, 1803, letters testamentary of all and singular the goods, chattels, and credits of the said James Irwin deceased, annexed, were issued in due form of law by John Norris, Esq. register for the probate of wills, and granting letters of administration, in and for Mifflin county aforesaid, to the said George Irwin in his lifetime, William Sterrett the other executor in said will, named and appointed, having before that time, to wit, the same day and year last aforesaid, renounced and relinquished his right and title of executorship, under the said will. And the said George Irwin in his lifetime afterwards, to wit, the first day of January, 1804, at the county aforesaid, so being executor of the testament and last will of the said James Irxvin deceased, as executor of the last will and testament of the said James Irwin deceased, had and received, divers other large sums of money, amounting to the sum of three thousand dollars, of the proper money of the estate of James Irwin aforesaid, deceased, to and for the uses in the said last will and testament of the said James Irwin deceased, mentioned. And the said George Irwin afterwards, to wit, the seventh day of May, 1805, died intestate, not having paid over in his lifetime, the said divers large sums of money, amounting to the sum of three thousand dollars, to the uses in the said testament of James Irwin deceased, mentioned. And, whereas afterwards, and after the death of said George Irwin, to wit, the first day of June, 1805, letters of administration upon all and singular the goods, chattels, and credits of the said George Irwin deceased, were issued in due form of law, to the said Mary Irwin, David Allen, and James Sanderson. And, whereas afterwards, to wit, the seventeenth day of June, 1806, letters of administration upon the unadministered part of the goods, chattels, and credits, which were of the said James Irwin deceased, were in due form of law granted to the said James Irwin and John Ross, with the will of the said James Irwin deceased, annexed ; whereby, and by reason of the premises, action hath accrued to the said James Irwin and John Ross, as administrators of the unadministered part of the goods, chattels, and credits of James Irwin deceased, to have, demand, and receive of the said Mary Irwin, David Allen, and James Sanderson, administrators of George Irwin deceased, the said last mentioned sum of three thousand dollars, to and for the uses in the last will and testament of said James Irwin, deceased, mentioned.
    
      The administrators de bonis non of A. cannot maintain assumpsit against the administrators of the execu-' tor of A. for money had and received by such executor to their use: and the mixing such a demand with others, is error.
    
      Query, whether the administrators de bonis non of A. are entitled to recover in any form of action against the administrators of the executor of A. the balance due to the estate by such executor ?
    A statement cannot be filed in lieu of a declaration in. a suit for such balance. It seems, however, that if the defendant accept such statement, and proceed to Issue, the court will not reverse •the judgment for that cause,
    
      The defendants pleaded,, that their intestate in his life, owed nothing to the plaintiff’s intestate in his life, and that their intestate paid to the plaintiff’s intestate, and to the plaintiffs, all that he ever did owe. The plaintiffs replied, that the defendant’s intestate did owe; and that he, in his life, did not pay the same to the plaintiff’s intestate, nor to the plaintiffs; and issue was joined thereon. The defendants afterwards entered a special plea of plene administravit, and no assets: to which the plaintiffs replied, that the defendants had not fully administered, and, assets. After a former verdict and award for the plaintiffs, which were both set aside, a verdict was finally given for the plaintiffs, for 2309 dollars 97 cents, and judgment entered de bonis, &c.
    
      Watts and Duncan for the plaintiffs in error.
    1. The act of 21st March, 1806, sect. 5. allows a statement to be substituted for a declaration, only in a suit upon a “ verbal promise, book account, note, bond, penal or single u billand the demand in this case is not included in either of the above expressions. The statement itself is defective : it specifies nothing, whereas the act of assembly requires a specification of the time, when the promise was made. Nor does it authorise a general allegation of a sum of money without particulars.
    2. There are matters joined in this action improperly. A part consists of a debt due from George Irwin to his father, James, and part of devastavit of the estate of James Irwin.
    
    3. The administrator de bonis non cum testamento annexo cannot maintain such a suit as the present. An executor takes the personal estate, and is answerable only to creditors, legatees, or persons entitled to the undisposed surplus: the administrator de bonis non can only take property remaining in specie, or recover debts which are outstanding. 3 Bac. Ab. 19. title Executors and Administrators, I. 2. If an executor owes money to a testator the debt is equitable assets. 3 Bac. Ab. 10, Cas. Temp. Talb. 240. It was held in Wilson v. Wilson,
      
       that an executor holds in trust for the persons who are entitled to the estate. Suppose a creditor obtains judgment against an executor who then dies; against whom is the creditor to sue out execution ? The administrator of the executor is liable, and therefore the funds should not be taken out of his hands : An administrator de bonis non cannot support a suit against the administrators of an executor for a devastavit committed by him. A further difficulty in this case arises from the circumstance of this being an action of assumpsit, to maintain which, an assumpsit, express or implied, must be alleged and shewn. But it is impossible that George Irwin should have made a promise to these plaintiffs, because they were not in existence as administrators de bonis non till after his death. They cited Act of Assembly 2d April, 1802, and 21st March, 1772. Barker v. Calcott, 5 Binn. 33. 4 Mass. Rep. 611. 3 Bac. Ab. 12. 19, 20. 1 Saund. 219. note.
    
    4. An action of debt does not lie in this case, under the 10th-section of the act of 21st March, 1806.
    
      Hall and Huston for the defendants in error.
    This action is for money due from George Irwin to fames Irwin in his life, and for money of fames Irwin, received after his death, by George, his executor. These demands may be joined together, because the whole was assets in his hands. The same writ and the same judgment serves for both.
    Two points, however, are chiefly relied on by the plaintiffs fn error. 1. It is objected, that this is not a case in which a ■statement could be filed. The act of 21st March, 1806, was intended to simplify legal proceedings, and extends to all cases of debt, damages, or assumption. The writ in this case mentions money had and received, money lent, and money laid out and expended; and for aught that appears, a verbal promise may have been proved on the trial. The defendant made no objection to the statement, but went to trial on the merits. The act of 21st March, 1806, sect. 6. enacts, that no suit shall be set aside for form: and it would be extraordinary if the plaintiff could not have been nonsuited below, and yet judgment may be reversed here. 2. The great question in this case is, whether the plaintiffs can maintain this action, It is singular that no authority can be produced on either side, at law or equity, bearing directly on this question: but principles strongly analogous may be found. It is a well established principle, that the administrator of an executor does not represent the first testator. 2 Blac. Com. 506. 2 Selw. Ni. Pri. 683, 4. Underhill v. Devereux.
      
       An administrator de bonis non may sue execution on a judgment had by the first executor. 2 Went. Off. Ex. 117. Tidd's Prac. 1070. If the administrator of the first intestate brings an action for goods of the intestate and recovers, his administrator shall have execution of the judgment, but when he has recovered, then the administrator of the jirst intestate shall compel him in a court-of equity, to render so much of the money as he had recovered, to him, for the use of the first intestate. Anderson, 23. pl. 49. Moor, 4. pl. 13. S. C. cited Ray. 82, in Paschal v. Warren, Cro. Car. 450. pl. 23. 457. pl. 3. 12 Car. B. R. Cleve v. Vere, S. P. Money received by an executor, and not paid, is not administered. If a suit were brought in chancery in England, that court would probably bring all parties before them, both the administrator of the executor and the administrator de bonis non, before it decreed. In Pennsylvania, where some debts have preference and ail others are paid pro rata, the difficulty would be extreme if different suits were to be brought against different persons: and it would be equally so if the administrator of an executor were obliged to marshal the assets of the first testator. It is much more convenient to place the whole in the hands of the administrator de bonis non, who, having a full -view of the whole, may marshal the whole. Our legacy act of the 21st March, 1772, recognised administrators with the will annexed : and other acts authorise the removal of an executor, and the appointment of an administrator de bonis non in his place, and the executor in that case is to pay all in his hands to the administrator de bonis non, who gives security for his administration. They cited 5 Co. 10. Brudenell's Case. 2 Went. Off. Ex. 117. 1 Com. Dig. Administration, G. 2 Atk. 44. 11 Vin. 12. Exec. m. 8. pl. 1. note. 11 Vin. 218. F. A. 4, 5.
    
      
      
         3 Binn. 557.
      
    
    
      
      
         1 Vern. 473.
    
    
      
       2 Saund. 72. note O.
    
   Tilghman C. J.

This is an action brought by James Irxvin an(^ J°^n Foss, administrators, &c. of the goods and chattels of James Irwin, deceased, unadministered by his executor George Irwin, deceased, against David Allen, Mary Irwin, ancj George Sanderson, administrators of the said George Irwin, for the recovery of part of the estate of James Irwin, ■which remained in the hands of the said George Irwin at the time of his death. Two questions have been argued; 1st, Whether an action by the administrators de bonis non lies against the administrator of the executor? 2d. Whether, supposing it to lie, it can be supported in its present form ?

On the first point I do not mean to give an opinion ; but I consider it so doubtful that it is desirable the law should be made clear by an act of assembly. There is no privity between the executor and the administrator de bonis non. So totally unconnected are they, that at common law the administrator de bonis non could not have a sci.fa. on a judgment obtained by the executor. But this is now remedied in case of a judgment after verdict, by the statute 17 Cha. II. ch. 8. Neither, at common law, would an action by a creditor of the testator lie against the administrator of the executor. This also is remedied by stat. 30 Cha. II. ch. 7. by which the administrator of the executor is made liable and chargeable, in the same manner as his testator would have been, if living. The words of this last statute only include executors or administrators of executors in their own wrong, but have been construed to extend to the executors or administrators of rightful executors; (3 Mod. 113. Holcomb v. Pettit) and, to take away all doubt on this point, the executors or administrators of rightful executors are expréssly chargeable by stat. 4 and 5 William and Mary, ch. 24. I think it well enough settled, that the administrators de bonis non could not support the present action by any principle óf the common law. He is entitled only to such goods or chattels' of the testator as remained in specie in the hands of the executor at the time of his death, or to such money as belonged to the testator’s estate, and had been kept by the executor, separate and unmixed with his own. In all other cases the property was considered as vested in the executor, and could not be recovered in any form of action by the administrator de bonis non. That such is the law, will appear by the opinion of Chief Justice Holt, in the case of Wankford v. Wankford, Salk. 306. And that it was so taken by Chief Justice Parsons may be inferred from his opinion in Grant v. Chamberlin. 4 Mass. Rep. 611. In Pennsylvania, however, where the executor is held to be a trustee for the next -of kin, for such part of the personal estate as is not given away by the testator, there are strong reasons for supporting an action' at law, provided, chancery would support a bill filed by the administrator de bonis non in cases where the executor is a trustee for the next of kin. We directed the attention of the counsel to this point, but their researches have produced no instance of a bill in equity being sustained in such case. I have no doubt but an action will lie, in our courts, by a creditor or legatee of the testator, or by the next of kin, for the undisposed surplus of the personal estate. There does not seem, therefore, to be any necessity for the present action. But it is certain, that it would be much more convenient for the administrator de bonis non to receive the balance due from the executor, and then proceed to the settlement of the estate, than for each creditor and legatee to bring a separate action against the administrator of the executor. How far this court is authorised to support a new action for the sake of convenience, without absolute necessity, is a point which will demand very serious reflection, before it is decided. At present the decision is not called for, because I am clear, that the action cannot be sustained in its present form. In the first place, there is no declaration filed, but only a statement under the act of 21st March, 1806, containing the substance of the plaintiff’s demand.,, The act directs a statement to be filed in suits “ for the re- “ covery of any debt founded on a verbal promise, book ac- “ count, note, bond, penal or single bill.” But the plaintiff’s demand does not come within this description. Indeed it is not a debt which is demanded, but a sum of money which was in the hands of the defendant’s intestate, on a trust which was not performed. These statements are less certain than a declaration, and therefore not to be encouraged by an equitable construction of the act of assembly. As far as the legislature has thought proper to authorise them, the court is bouiid to support them. But it would be wrong- to extend the law to cases not within its plain intent. It may be said, however, that, as the defendants chose to accept the plaintiff’s statement in lieu of a declaration, and proceeded to issue upon it, the judgment ought not now to be reversed for want of a declaration. Supposing then the statement to stand for a declaration, let us see what it contains. The plaintiffs demand of the defendants the sum of 3000 dollars, “ as well for divers sums of money by the said George Irwin, “ in his lifetime, had and received for the use of the said “ James Irwin, (his testator) in his lifetime, as also for “ divers sums of money, by him the said James in his life- “ time, for him the said George in his lifetime, at his special instance and request, paid, laid out, and expended, as also “ for divers sums of money, by the said James in his life- “ time, to him the said George in his lifetime, at his like “ special instance and request, lent and advanced, and also “for divers sums of money, had and received, by the said u George in his lifetime, to andfor the use of the said James M Irwin and John Ross (the plaintiffs) as administrators of the said James Irwin deceased, and also for divers other sums of money, had and received, by the said George in “ his lifetime, to and for the use of the estate of the said u James Irwin, deceased.” Here is a strange mixture of demands, upon the whole of which the plaintiff obtained a verdict and judgment for 2309 dollars 97 cents, and costs; so that it is impossible to say, on what part of the demand the verdict was founded. Now, although I am willing to make all due allowance for want of form, yet this statement contains same things too improper to be got over. How is it possible, that the executors of James Irwin should receive money for the use of the plaintiffs (the administrators de bonis non) when, at the time of the receipt of the money, it was unknown, that letters of administration, de bonis non, would ever be granted? The money was assets of the testator in the hands of the executor, subject to the payment of debts and legacies, and there was, besides, a trust, that if there should be any surplus undisposed of by the will, it should be paid to the next of kin. If all these payments were not made, the executor was guilty of a devastavit, for which an action would lie. But to suppose an assumption by George Irwin to the plaintiffs, is a confusion of all legal principles. There was no contract, express or implied, betweén them, and therefore no action on a supposed promise can be supported. It may be of great importance to the defendants that the plaintiffs should not be permitted to recover on this extraordinary statement. Suppose a creditor of the testator should hereafter bring an action against the defendants, founded on the devastavit of George Irwin. I know not how they would defend themselves, because I know not how it could be ascertained on what the verdict in this case was founded. At all events, their case would be attended with verygreat difficulties, to which I do not think myself at liberty to expose them, by straining the law in favour of a demand brought before the court in so loose a manner as to form a precedent of dangerous example. I am therefore of opinion that the judgment should be reversed.

Ye ates J. dissented.

Brackenridge J. agreed with the Chief Justice.

judgment reversed.  