
    Braxton & al. Surviving Executor of Philip W. Claiborne Deceased, v. Winslow &. al. Surviving Justices of Spotsylvania County.
    [April, 1791.]
    Administration Bond — By Whom May Be Put in Suit.—
    ' The administration bond may be put in suit by creditors, as well as legatees. '
    Executors — Administration Bond — Action on. — But it is necessary to obtain judgment, in a prior suit against the executor, before an action upori the administration bond, can-be sustained.
    Same — Devastavit—Verdict.—And the verdict should find the amount of the waste; for devastavit of a penny doed not subject the executor to more than the amount of the waste actually committed. Same — Same—What Constitutes. — Paying debts of inferior dignity is no.t a devastavit, if the executor retains assets enough to pay those of higher rank.
    This was a writ of error to a judgment of the general court; in which the Spotsyl-vania justices were plairitiffs against the executors of Claiborne,.who was security for Bernard Moore, as executor of John Spotswood. The ^declaration was in the form of a declaration upon a common money bond. Plea conditions performed. Replication, that Waller’s executors were holders of a protested bill of exchange, drawn by Spotswood, and not paid by his executor, who had notice of it; and Greemes’s executors had recovered a judgment against Moore, as executor of Spotswood, in July 1767, which was riot paid by him, although assets sufficient came to his hands to satisfy it, in August of that year — which he had wasted. Rejoinder, no waste. Issue. Upon the trial of the cause, the defendants demurred to the plaintiffs’ evidence: which shewed that the executor had paid debts of inferior dignity, without stating an3r other waste; but there was no proof that there were not assets enough left to satisfy the judgment and bill of exchange ; or that any execution upon the judgment had ever issued. Verdict and judgment for the plaintiffs in the general court. o
    
    John Taylor, for the appellants.
    It is doubtful whether creditors can sue upon the administration bond; which, according to the English cases, is taken for the benefit of legatees and distributees, and not of creditors. 1 Salk. 316; 2 Atk. 66. But be that as it may, it is certain, that no action will lie upon it until there is a previous judgment against the executor, with a return of nulla bona. For it is the debt of the testator, and not of the executor; who cannot be charged with it personally, until he has committed a devastavit; because no action lies, at common law, against an executor in his own right for a devastavit, until the debt is first established by a judgment against him as executor, 2 Lev. 209; 1 Ventr. 315, 321: which prove that a dev-astavit cannot be alleged upon the original debt as left by the testator, but that it must be founded on a judgment and execution against the executor, in order to ascertain whether there be a debt due from the testator, and whether the executor has wasted the assets. It is plain, therefore, that, without such previous judgment and execution, no action will lie upon the administration bond, which is a mere collateral *security, and the obligors are not liable to be sued upon it, until executor has committed waste. For the the bond imposes no new obligation, but only enforces what the common law requires the executor to perform; and, as it does not alter the duties, it does not change the proceedings, or entitle the creditor to a personal demand upon the executor, before he has established his debt, and discussed the testator’s estate. This course of proceeding is the more necessary, as the estate will otherwise lose many of its de-fences; thus, the act of limitations will be no bar; because that plea is given, by the act of assembly, to certain actions only, and cannot be pleaded to any other; consequently, not to an action on the bond. Again, as the bond is joint and several, the suit, if it can be brought at all, may be brought against the security only ; who will have to defend the justice of the original claim, without vouchers, or any knowledge respecting it. The evidence stated in the demurrer, does not establish a devastavit: For it is not waste to pajr debts of inferior dignity, before those of superior grade, provided the executor has assets left to pay the latter. 2 Bac. Ab. 430; 2 Black. Com. 511. The demurrer, however, is perfectly silent as to this; for it is not stated that there were no assets left to satisfy the plaintiffs’ demands; and therefore no dev-astavit is shewn. But, if the creditors could sue upon the bond, and if the suit could be brought before a previous judgment is had against the executor, still, the present action cannot be maintained; because two separate claims are joined in the same suit; which, if allowed, would produce great inconvenience, 1. Because it would tend to embarrass the trial of the cause, by the great variety of the matters which would be embraced. 2. Because the defendants would be liable to be oppressed by the united efforts of all the creditors acting against them at once; for, if the claims of two may be included, two thousand may. 3. Because, if all the creditors may unite, the amount may be so enormous, that bail cannot be procured, notwithstanding the rule that an executor cannot be held to bail in the first action. 3 Lev. 375.
    *Baker, Wickham and William Nelson, for the appellees.
    Creditors have the same right to sue upon a bond as legatees or distributees; for it is taken for the benefit of every person injured by the maladministration of the executor. The English cases do not apply, as well because we are regulated by the act of assembly, as because executors do not give bond for their administration in England; for the statute of Charles II. does not extend to them, and therefore the cases are not alike: But if it be compared with the bond of an administrator under that statute, creditors may claim the benefit of it. 3 Atk. 248; Cowp. 140. The undertaking of the executor is the undertaking of the securities; and they are as much bound as he, to see to the application of the assets, and are liable, in the first instance, for his misconduct; because, by joining in the bond, thej' made the debts their own as far as the assets would extend ; and cannot complain at being called upon for them. If no action can be brought upon the bond until a previous judgment is had against the executor, creditors will frequently be without remedy; for, if the executor absconds or dies before judgment is obtained against him, relief against the securities will be lost. This is a consequence which the legislature could not have intended; and therefore, if it be true that an executor was not liable to be charged with a devastavit until a previous judgment was obtained against him in his official character, the act of assembly ought to be understood as intended to provide against it, and afford prompt redress. The dev-astavit is established, 1. Because the demurrer admits every conclusion which the jury might have drawn from the evidence, and consequently the waste, which was the point in dispute. Cocksedge v. Fenshaw, Dougl. 129. 2. Because it was a devastavit to pray debts of inferior dignity before those due to the plaintiffs in the suit below, 1 Com. Dig. 274; and the condition of the bond, “well and truly to administer the estate,” was thereby broken. The defendants have not denied the plaintiffs’ debts, and, therefore, have, in effect, admitted them; especially as the demurrer *does not profess to state all the evidence, and perhaps there was other testimony which satisfied the jury both of the justice of the plaintiffs’ claim, and of the waste which had been committed. The joining of several claims in one suit, is no objection; for the creditors can only sue upon the bond when the executor has been guilty of a devastavit; which must always be the real point in dispute, and must be proved upon the trial of the cause; so that no injury can arise from the practice. For a devastavit of a penny subjects the executors to payment of all the debts, 1 Com. Dig. 226; Roll. 229; and, therefore, it is immaterial whether he be sued in one or more actions, as the same evidence will apply to them all. Besides, there is a convenience in it, as it avoids circuity of action, and saves costs.
    Marshall, in reply.
    The bond of executors in this country is like the bond of administrators in England under the statute of Charles II. and therefore the securities of an executor here will not be further liable than those of an administrator there. Consequently, if the administrators’ bond in England is not liable to be sued by the Creditors, neither will the executors’ bond in Virginia; for the party injured, spoken of in the act of assembly, means the party which the act intended to provide for. But the cases, cited by Mr. Taylor, shéw that the administrators’ bond is a bond for distribution only, and not for the benefit of creditors. If, however, creditors may sue upon the bond, it can only be after judgment and execution against the executor; for he is the proper person to defend the estate against the claim; and a suit upon the bond, in the first instance, would involve a multitude of issues which it would be perplexing to try; .and the executor, who is not liable to be held to bail until judgment and execution against him, will be forced to give it, or be imprisoned whenever the malice or caprice of a creditor may prompt him to demand it, although the administration may have been, in every respect, correct. The objection, that the executor may abscond or die before ^judgment is obtained against him, proves nothing; for it supposes an extreme case; and, if the ’ legislature had intended to provide for it,' there would have been the same necessity to have provided for the death or absconding of the securities also; which nobody .pretends they have done. The act of assembly, by giving an action on the bond, did not mean to alter the common law with regard to executors, or to dispense with any of the prerequisites to their personal responsibility : And, at common law, the responsibility commences with the devastavit; which cannot be established by amy other mode than a previous suit to ascertain the debt, and enable the executor to contest the claim. The demurrer only admits such facts as necessarily arise out of the evidence; and not imaginary conjectures, without' any testimony to support them. But the evidence here does not shew waste; for it does not appear what assets are left, or that there will not be enough to satisfy the plaintiffs: which ought to have been shewn; for it is not a devastavit to pay debts of inferior dignity, if there be assets sufficient to pay those of superior grade and still less is it true that a devastavit of a penny subjects the executor to payment of all the debts; for he is not liable further than the amount of the assets actually wasted. 2 Bac. Abr. 430; Bull. Nis. Pr. 142. If the demurrer does not state in words that it was all the evidence produced by the plaintiffs, it makes no difference, as the cause is submitted to the court upon the facts in the record; and, by demurring, the defendants, so far from admitting the plaintiffs’ claims, deny them, and refer it to the court whether the plaintiffs have proved a right to recover. It is not true, that the securities, by joining in the bond, make the testator’s debts their own to the extent of the assets; for they never become responsible until there is a devastavit; and what constitutes a devastavit is always to be decided by an action against the executor in his official character, with a return of nulla bona; and not by a suit against the securities in the first instance, as *the latter cannot be supposed as capable of making defence against the claim, as the former.
    Cur. adv. vult.
    
      
      Executors — Administration Bond — Action on. — See footnote to Call v. Ruffin, 1 Call 333. The principal case is cited inu Taylor v. Stewart, 5 Call 524. See also, monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6; monographic note on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.
    
   ROANE, Judge.

There are two principal questions in this case. The first is, Whether a creditor can sue upon an administration bond? The second, Whether such suit can be brought previous.to a judgment against the executor, with the necessary proceedings on it to prove a devastavit?

As to the first: It is clear from the whole complexion of the act, the oath it prescribes, and the right of the sureties to demand counter security, &c., that a creditor may sue upon the bond. But it is objected, that it has been held that such an action, at the suit of a creditor, is not maintainable in England under the statute of Charles II. That statute, however, differs in terms from ours; and therefore a decision upon it cannot give a rule in the present case, as our act expressly says, that any party injured may bring suit upon the bond; and a creditor, whose debt has been lost by the misconduct of the executor, is emphatically a party injured. Besides, there have been conflicting decisions upon the English statute; but it is not important to examine them, as the point is so expressly provided for by the act of assembly.

As to the second: It is the province of the court to decide, according to a sound discretion regulated by law, what the creditor should do to prove himself a party injured in the language of the act of assembly, and to consider' of the consequences of sustaining a premature action upon the bond. Now there is but one possible inconvenience which can result from a previous discussion of the executor; namely, that of his absconding : which is supposed to be answered by the observation that it is an extreme case; and in contemplation of law, the testator is always represented; so that there is no inconsistency in requiring a previous suit against the executor; and we ought not to reject a system which embraces the cases which usually happen, because it *does not extend to one that rarely happens; for ad ea, quae frequentius accidunt, jura adaptan tur, is the general rule. But, upon the other hand, the mischief of sustaining an action upon the bond, without a previous suit against the executor, is incalculable. For it is neither reas'onable nor just to put the defence of the estate upon a mere stranger; who knows nothing of the transactions, cannot avail himself of the same pleas that the executor could, and has none of the documents and evidences necessary to resist the claims; which might therefore be frequently recovered of him, when the executor had a good defence. The construction which considers it merely as a suit upon the breach of the literal expression of the bond, is too narrow: It is a suit to establish a debt against the testator also; which ought to be done in a suit against the executor himself, as he is the only person competent to make the proper defence, and put the claim fairly in issue upon the law and the evidence. The bond is only intended as a security against a devastavit, and is not forfeited until that is established. But the cases cited prove that a devastavit can never be alleged, until there is judgment against the executor with a return of nulla bona. Consequently the bond is never liable to be put in suit until the proper proceedings to convict the executor of a devastavit have been had: which has not been done in the present case; and therefore I am of opinion that the judgment ought to be reversed.

HENRY, Judge.

If there be any doubt whether the bond was given a security to creditors, it is time that it should be settled. But there can be no doubt; for the whole complexion of the act of assembly proves that creditors were intended. The executor is to pay the debts and then the legacies. This he stipulates to do; and gives security for performance. Consequently, if he has assets, and fails to pay the debts, he prejudices the creditors; who thereby become parties injured in the language of the act, and therefore are entitled to sue upon the bond, whenever they have ^established their claims, and the default of the executor. The English cases afford curious, but not useful, knowledge, upon the point. To say no more of them, they contradict each other, and are inapplicable to the' case, as the act of assembly has taken up the subject, and must give the rule.

The next question is, What the creditor must do to enable him to bring an action upon the bond? The statute says, that the party injured may sue upon it. But who is such party; and how does he become so, in the question ; for he was not such a party when the bond was executed, and could only become so, by posterior events. The answer to this enquiry is, that he ought in the first place to prove that he is a creditor by a judgment against the executor, who is the proper person to contest the claim: and then that the assets have been wasted; which must be shewn by an execution with a return of nulla bona. Until all this has been done, he is not a party injured within the meaning of the act of assembly; and consequently cannot bring a suit upon the bond. These things, however, have not been attended to in the present case; for although Greme’s executors obtained a judgment, they took no execution; and Waller’s executors brought no suit. Neither of them, therefore, have proved a devastavit in the mode prescribed by law; and consequently neither of them can sue upon the bond, as they have not shewn themselves to be parties injured, according to the meaning of the statute.

But if the proceedings had been right in other respects, the judgment would still have been erroneous in this, that the verdict does not find how much has been wasted: which was essentially necessary; for it is not true, that a devastavit of a penny subjects the executor to pay more than the amount of the waste actually committed.

Upon the whole, I am of opinion that the judgment should be wholly reversed, and not sent back to be further proceeded in, as neither the pleadings nor the evidence, shew that the plaintiffs are entitled to sue upon the bond.

* WYTHE, Chancellor.

It is clear that creditors may maintain an action on the bond. Eor the act directs that the debts shall be first paid, and then the legacies; and that any party injured may put the bond in suit. It is preposterous, therefore, to suppose that the legislature intended to secure the legatees and not the creditors, whom they had preferred in the order of payment, and whose claims were ex debito justitiae. A creditor who loses his debt by the malversation of the executor is at least as much injured as a legatee who loses his legacy; and therefore comes as1 precisely within the letter of the statute. The English cases contradict each other, and have no application to that before the court; for their statute differs from ours; and consequently no decision on it can have any influence in the construction of ours; which comprehends, as a party injured, every person who is prejudiced by the misconduct of the executor, and affords redress to him by an aqtion on the bond.

The other questions admit of a different consideration. The creditor claiming to sue upon the bond must shew that he is a creditor; that there were assets, which have been wasted; and that his debt remains unpaid. Without a combination of all these he is not a party injured; for the mere act of paying debts of inferior dignity, as was done in this case, is not a devastavit, if he retains assets to pay those of higher grade, or pays them himself. To prove himself a creditor, the plaintiff must shew that he has obtained • a judgment against the executor who is the proper person to contest th,e claim; and that he has issued execution and discussed the estate without satisfaction. For it is a dispute which can only be managed by the parties interested; and in every case the law requires that all those who have any interest in the controversy, should be convoked by the plaintiff. Suppose A. agrees to pay B. what C. owes him; can B. call on A. for payment until he ■ establishes his demand against C.? That would leave A. without redress against C., as it would be res inter alios acta and he was never heard, although he might have been able to refute the claim. ^Waller’s executors ought therefore to have shewn that he was a creditor, by a suit and judgment against the executor, with a return of nulla bona upon the execution. In Greme’s case these duties have been discharged so far as to ascertain the claim by a judgment against the executor; but they have not taken an execution, and the omission was fatal. It was objected, that the act of assembly does not prescribe all this tó be done. Bijt it was unnecessary; for when a statute gives a remedy without prescribing a particular mode of proceeding, the mode of the common law is to be pursued. It was also objected, that, if a previous suit were required, there might be a failure of justice in some instances: But there is no weight in the argument’; for the executor is supposed to have acted rightly until the contrary is proved; and, if you cannot proceed against the executor, that is not a reason for fixing the securities; who have a right to say that they undertook for a due administration by the executor only; and that it devolves upon the plaintiffs to prove by due course of law, that it has not taken place. I think, therefore, that the plaintiffs have not. entitled themselves to sue upon the bond; and that the judgment ought to be reversed.

FLEMING, Judge.

I concur in opinion that a creditor may maintain an action on the bond, Por the act of assembly directs that any party injured may sue; which applies to every person who is prejudiced by the misconduct of the executor. The cases cited against it have no influence upon the question; for they are contradictory to themselves, and were made upon a statute which differs from ours. The only point of enquiry in all such cases is, whether the plaintiff is a party injured by the course which the executor has pursued; and if he proves it in the manner prescribed by law, he brings himself emphatically within the language and meaning of the act. But then the question arises, What the creditor must do to avail himself of the benefit of the bond? And the answer is, that he is to *prove himself a creditor by a judgment against the executor; that he issued execution; and that nulla bona was returned. For until that is done, the executor is presumed to have acted rightly, and that the bond has not been forfeited; for the plaintiff, in every such case, must prove a devastavit before he is entitled to sue upon the bond. In the present case, however, none of the plaintiffs have taken all these steps; and therefore, none of them can sustain the action. But this is not all; for the verdict does not find the amount of the supposed devastavit; which was indispensably requisite; because neither the executor nor the securities were liable for more than the waste actually committed. Upon the whole, I think the plaintiffs have not made out their case; and that the judgment ought to be reversed.

CARRINGTON, Judge.

It is not necessary to repeat the reasons given by my brethren for the judgment which is to be rendered. I shall therefore content myself with saying that I concur with the rest of the court; and deliver it as their unanimous ■ opinion, that the court below erred in this, that it was not shewn that the plaintiffs had obtained a judgment against the executor in the first place, and pursued the testator’s estate until it was exhausted.

The judgment is therefore totally reversed, and the following is to be the entry: i

“The court is of opinion that the matter stated in the demurrer to be shewn in evidence by the defendants is not sufficient in law to fix a devastavit on Bernard Moore in the record mentioned, orto maintain the issue on the part of the defendants: Therefore it is considered by the court that the judgment, in consequence of the opinion of the said general court that the matter was sufficient in law, be reversed, &c. ”

N. B. Judge Carrington, the next day after the judgment was given, informed the reporter that the judges were principally influenced by the following reasons :

*1. Because it did not appear by the proceedings that judgment had been obtained against the executor upon the bill of exchange, in order to subject the testator’s estate in his hands, and nulla bona returned upon the execution. Without which there could be no devastavit established so as to entitle the creditor to sue upon the bond; inasmuch as the bond could only be considered as a collateral security; and therefore not liable to be put in suit until the executor was convicted by due course of law of having wasted the assets.

2. Because it did not appear by the evidence stated in the demurrer, that there were not assets sufficient after paying the inferior debts, to discharge the bill of exchange and judgment; inasmuch as it is not a devastavit in the executor to pay debts of inferior dignity, if he still retains assets enough to discharge those of higher degree.

Memorandum. — Some year after the judgment in the foregoing case was given, chancellor Wythe having occasion to consider a similar case, wrote to president Pendleton who was present at the judgment, but did not sit in the cause, to know what he understood to have been decided in that case; and received an answer in writing that he, judge Pendleton, understood it to have been decided, “That previous to the commencement of a suit against the securities, or even against the executor, on the bond for the faithful discharge of his duty, founded on a charge of a devastavit in the executor, the creditor ought to proceed against the executor to establish the demand and convict him of the devastavit; when failing to recover his money by that means, he may then by a suit, of-the present sort, resort to the securities. But to admit such suit in the first instance, would subject the sureties to the unreasonable burthen of contesting the justice of the debt and of defending the conduct of the executor, which, as they are strangers to both, must tend to produce injustice to the estate in the first case, and to themselves in the other.”  