However the law might have been formerly, such bonds taken by executors or administrators, are now a part of the estate of the deceased, and are only assets when the money is received j. the obligors and sureties-may become insolvent, without any default of the executor, before a recovery can be effected ; it would be very unreasonable if he were to be made a warranter of all the bonds he takes in the execution of a duty prescribed to him by an express law.,
Hmjmood, Justice.
With respect to the rule of-the common lav/ upon this subject, there can be no doubt; every contract entirely and. wholly originating after the testators death made with, his executors, is a contract which they.do-not succeed to,and therefore must sue in jure proprio. 4 term 277, 5 term 234, L. Ray. 436 437. Salk. 207, 6 Mo. 181, Godol. 155, where the thing to be recovered by the action will be assets when recovered and not before, the action must be as executor, but if it be assets already, and whether be recover or not, he need not sue as executor, 6 Mo. 94. Now allthe effects of a testator actually come to the hands of an executor are assets rendering him liable-to answer the value to legatees and creditors, unless he can excuse himself, either-by shewing that the effects were lost or impaired in value without any default in him, as.if destroyed by enemies, flood, lightning or the like, or if insolvent trespassers come and destroy the goods without any default or neglect in him; or.if a debtor in an obligation made to the testator, be insolvent, or become so before, the monies .can be recovered of him, these and the liks *20cases will form an excuse for him and exonerate him, either of the whole value or ot part, according as the proof is ; but still the prooflies upon him, it being better to require it of him than of the legatees or creditors (the first of whom may be infants and the latter perhaps living at a distance) to give proof of more having come to his hands of the value of any article than he admits, he might, and it is to be feared would, in many instances, charge himself with smaller sums than did come to his hands, and throw it upon them to prove the circumstances of each particular article, of which in most instances they could not know any thing, Office Ex. lit), 113, 115. Then if all the effects which actually come to the hands of the executor be assets, he is atibe common law prima facie chaigeable with that value, and if he sell or waste or otherwise dispose of them, he is still liable not for what he may have gotten, but for the value, and his sale of them is oí no consideration to the legatees and creditors, they not being at all concerned in the contracts he may think proper to malte — they are his own--they affect him only, and he only can claim the performance of them. If the executor take a new security for a debt due to the testator, he extinguishes the old demand and becomes liable, and therefore shall sue in his own name, 3 Ba. Ab. 441. By a parity of reason, if be sells the testator’s goods, and takes a bond or promise instead of the possession of the goods, he shall be liable and the same consequences follow ; this being the old law, the question arises, has it been altered by the acts of Assembly ? 1 think they have nos altered the old law in this respect; the first of them was made to restrain abuses practised by executors and administrators, who bad the goods appraised frequently at an undervalue, and so wronged the legatees and creditors ; this is recited in the preamble of the act, and is then said to be “ to the great detriment of the creditors and kindred,” and the act itself alters this for the future, by directing a public advertisement at the courthouse, a public sale to the highest bidder, and a return of the account of sales by the executor on oath; those provisions have one only object, namely that of preventing the selling of the goods or beeping them by the executor at an undervalue ; the other act adds, that the sale shall be made by the sheriff, on a credit of six months, and that bonds with sureties shall be taken. Is all this to favour the executor? To alter the law so as to render him less liable than before ? No, surely; it was to take from him the probability of abusing his trust, by diminishing the value of the estate ; before the act he might take the goods at their appraised undervalue, now the appraisement is done away; he might sell privately to a friend or trustee, now he cannot; he might sell for ready money, now he cannot; before the last act and after the first, he might sell at public auction himself, or by an agent of his own appointment, but now only by the sheriff,. *21 2 public sworn officer, entrusted by the law to enhance the price •<: i.io'.V as possible, and he is now to sell on .3-3: months credit; those provisions are all oí them directed against the power 'a commit abuses, and lud not in view in any instance to alter the in? in favour of the executor — -But why take bond and security? for this reason ; that being directed to sell upon credit, it would have Leen a legal excuse ior him if the vendee became insolve-cs before the day of payment; to take from him tins excuse be ■,« directed to take sureties, so that if the vendee became insolvent, he might be told to resort to them, and so be without excuse for not having the value of the goods sold. The latter act did not intend to put it in his power to say to a legatee or creditor, though I once had the goeds I sold them and took bond and sureties and here it is. As to an executor 01 administrator discharging himself by a tender of the bonds, that is designedly left out of the act, though that provision is expressly made for guardians,- — And why left out in these cases ? — Because executors and administrators must collect and pay debts, and settle the estate with those monies, which guardians are not to do,— These acts limit the discretionary power which executors and administrators had before, and which might be exerted to the prejudice of the estate, in the several instances before mentioned ; but they do not enlarge this provision or diminish their liability in any one instance, and consequently the executor must be liable for the goods come to his hands, since these acts in the same manner as before; h'e had the power to sell before and might sell in any way he thought proper ; he may sell still, but when he sells he must do it as the acts direct, so as to exclude the possibility or the suspicion that the goods have been sold for less than their value 5 this is the meaning di the acts. If before the acts he had sold on credit, he must have sued in his own name, and the bonds would have gone to his executors, aad if the obligors or sureties were insolvent at the date of the bond or were then likely to become so, or have become so since, his estate wiil be liable for the amount and must pay it, unless they can prove what in law will excuse them, which is far more equitable than to say the administrator de bonis non, shall take the bond, and that it is a part of the deceased’s estate, and that the administrator must sue upon it, and in case of his being able to recover or obtain nothing, that then he shall be turned round to sue the estate oí the first administrator or executor, and to prove the debtor’s insolvency at the date of the bond, before he can be allowed to recover. I will, however, think further of this question, as the opinion I am now of, seems to be against that of Judge Williams, and also against what I have heard some <ci tti.e most respectable of the profession express.
sic etdjou'.’natuu