Palmer v. Litherham, 1 N.C. 267, 1 Mart. 267 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 267, 1 Mart. 267

Palmer vs. Litherham.

Mich. 3 Car.

DEBT against one as administrator, he pleaded that before the writ brought, he renounced the administration; and the ordinary received it. The plaintiff replied that before the renunciation, he had administered, and the renunciation was by covin. The defendant rejoined by protestation, that without covin, for plea ut supra, he had renounced. Whereupon the plaintiff demurred.

Curia.

The administrator may renounce; and the ordinary may accept his resignation after administration; but he is not bound to do so. And if he grants a second administration, the first is determined. But the first cannot be charged as executor de son tort, for the administration made it lawful for him to intermeddle; nor as administrator, for the administration is determined.

It was then argued, what remedy has the debtor of the intestate, if the administrator releases and then refuses.

Jones, J.

Before I came from the Common Bench, an administrator durante minori ætate wasted, the executor came of full age, and it was doubted what remedy there was. Some said that he shall be charged as de son tort, other, on the special matter. At last it was determined, that if the executor wastes the goods, he cannot be charged, except on the *special matter, otherwise it would be a very mischievous case. There would be no administrator, but who would refuse, after having wasted the goods. Packman's case. 6 Rep. 18.

On another day, Crew, Serj. If administration is granted and the administrator wastes the goods, and the administration is committed to another, the first administrator is chargeable. So, if one be made executor for one month, and afterwards another; if the first executor wastes, he is chargeable.

A peremptory day was given to the defendant.