CHAPTER X. REMEDIES AGAINST THE PERSONAL REPRESENTATIVE. SECTION I. BY ACTION IN THE COMMON-LAW COURTS. 1. Personal representative only liable to actions within the jurisdiction where appointed. 2. Remedies against executors are: 1. For the act or default of the testator; 2. For a share in the estate. 3. Brief suggestions as to the forms of remedies against executors, &c. 4. Commonly all actions which survive in favor will survive against executors. 5. This rule is uniform as to actions of contract. Actions of tort form an exception. 6. Rights of action on contracts of a personal nature do not survive against execators, unless upon breaches perfected by the deceased. 7 and n. 10. Some covenants must be construed as strictly personal to the cove nantor. 8 and n. 12. How far covenants for quiet enjoyment, either express or implied, will extend. 9. The contract of the party includes his personal representative, whether named or not. 10. Continuing contracts, in the nature of agency, terminated by death of principal. 11. Where the transaction is absolute and clearly defined, its obligation survives. 12. But contracts for subsistence and the like terminate by death of parties. 13. Promise, that one's executor shall pay, same as an absolute promise to pay. 14. One's representative not liable for penalty incurred. Exception. 15. No action lies against representative for escape on final process. 16. Representative not liable for devastavit. Exception. 17. The sheriff's personal representative liable to an action for money collected on execution. 18. Representative not liable for mesne profits, but is for use and occupation. Exception. 19. Action will not lie against representative of carrier and others for tort, but will for breach of contract. 20. Representative not liable for waste, but is for money received in consequence. 21 and n. 34. No defence to an action that defendant was induced to administer by plaintiff's promise not to sue. 22. Joint contractor's personal representative not liable to action at law, unless he be the last survivor. 23. But in several, or joint and several contracts, the representative is liable to a separate action. 24. The contract may, by express stipulation, bind the personal representative. 25. How far the representatives of shareholders are responsible. 26. In general, covenants bind the representative of the covenantor. 27. The responsibility of the assignee, or personal representative, discussed. 28. Only express covenants, and not those implied in law, will bind representatives. 29. The representative is liable, in debt, for rent accruing after assignment. 30. If the whole rent accrue after decease of lessee, the representative is liable per sonally. 31. If part of the rent accrue before, and part after the decease, it can only be joined, in one suit against the representative in that capacity alone. 32. The mode in which the representative may exonerate himself from responsibility. 33. If he take possession he is responsible to the extent of the benefit he might have derived. 34. It would seem that an executor or administrator is not bound by a perpetual covenant to pay rent. 35 and n. 61. The extent of the responsibility of representative in case of assign ment. 36. Representatives bound by covenants to repair. 37. Entry of one executor will not render both liable for use and occupation. 38. Covenants in indentures of apprenticeship regarded as personal. 39. How far the husband and his representative responsible for wife's debts. 40. How far services performed, on expectation of legacy, ground of action. 41. Conclusion from preceding. 42. If the plaintiff rely upon a new promise by the representative, he should declare upon it. 43. But the promise must be express, and, it would seem, upon consideration. 44. New promise, or part payment by co-contractor, will not remove bar as to de ceased one. n. 73. Discussion of the American cases upon the question. 45. Nor will an acknowledgment or part payment by the representative of the deceased co-contractor have any effect as to the survivor. 46. If statute begin to operate, it will continue to run, unless saved by exceptions in statute. 47 and n. 80. Set-off must be of debts in same right. 48. Plene administravit should be pleaded, or judgment will be presumptive of assets. 49. So also that debts of prior degree have absorbed the assets. 50. The inventory prima facie charges the representative. 51. Where the personal representative prevails in the suit, he recovers costs. 52. So where he fails, as a general rule, he should pay costs. § 39. 1. Ir will be understood, from what we have before said, that no action can be maintained against any person, as executor or administrator of another, unless he has been appointed to that office by the proper tribunals having jurisdiction in probate matters in the state or country where the suit is instituted.1 2. The remedies against the executor or administrator will have reference to two distinct classes of claims: 1. Those which arise from the act or default of the testator or intestate 2. Those which arise out of some claim to participate in the distribution of the estate. We shall attempt in the first place to give a brief view of remedies against the executor or administrator for the duties or wrongs of the testator or intestate. 3. The form of the remedy against executors and administrators is rather a matter pertaining to pleading than to the duty of such officers; but it may not be improper to state here that in actions against executors the plaintiff is only bound to join those who have administered.2 And in actions against femes covert, as executors, their husbands must be joined. And if one of two or more joint executors die, the action must be brought against the survivors only, and will not lie against the personal representative of the deceased executor and the surviving executors jointly. Trover will not lie against an executor and others, for 1 Story, Confl. of Laws, § 513; Kerr v. Moon, 9 Wheaton, 565; Vaughan v. Northup, 15 Pet. 1; Williams v. Storrs, 6 Johns. Ch. 353. 'Alexander v. Mawman, Willes, 40, 42; Cabell v. Vaughan, 1 Saund. 291, 291 m. * 2 Wms. Exrs. 1751. • Ibid. a conversion by them, in conjunction with the testator, since the judgment against them will not be in the same right; in the one case it being de bonis propriis, and in the other de bonis testatoris. Strictly speaking, an action of trover does not survive against the personal representative. For if the goods form part of the estate, the proper remedy is to demand them of the personal representative, and if he refuse to surrender them, he will thus render himself personally liable in trover; and if they do not come into the estate the tort becomes a mere personal wrong which will not survive against the estate.5 4. It will be useful here to inquire briefly what causes of action, growing out of the acts or defaults of the deceased, will survive against his personal representative. And, in general terms, it may be said, that for the most part the same classes of action which survive in favor of an executor or administrator will survive against them, and vice versa.5 But to this there are, as we shall see, some exceptions. 5. As a general rule all causes of action founded in contract, either express or implied, survive against the personal representative as well as in his favor. But it is laid down by Williams, a very accurate writer, that the rule, actio personalis moritur cum persona, now applies in all its strictness to actions against the personal representative; "and this rule still holds with respect to the person by whom the injury is committed; for if he In many of the states actions de bonis asportatis are made to survive against the estate of the wrong-doer, and all other actions for damages done to real or personal estate. Gen. Stat. Vermont, ch. 52, §§ 10-13. And in some of the states these actions, which survive for and against the personal representative, are so extended as to embrace almost all actions of tort, and especially those for injuries to the person or property. Gen. Stat. Mass. ch. 127, § 1. The question how far the party has any remedy against the personal representative for a conversion by the deceased, is considerably discussed in Hambly v. Trott, 1 Cowp. 371, 373, where it is held that trover will not lie in such case. Ante, §§ 21, 25, 27. dies, no action of this kind can be brought against his executor or administrator, though in some of these cases, such as taking away goods, &c., a remedy may be had against the executor in another form," citing a long list of cases. 6. There are some exceptions in regard to actions of contract surviving against executors and administrators, since contracts may be as strictly of a personal nature as torts, and when that is the case they do not survive against the executor or administrator, unless in some excepted cases, where a perfected breach accrued during the life of the deceased. This exception to the general rule will include contracts by authors to prepare works of any kind for the press; contracts for the instruction of apprentices. And this must be eminently so in contracts to marry, so that an action could scarcely be held maintainable against the personal representative in such a case, unless the promisor had actually married another before his decease, although he might have manifested, in other modes, a determination not to fulfil the contract on his part. 8 7. There are some other cases of an equivocal character, where the English courts have held the contract to bind the party, only during his life, and that no action will lie against the personal representative, not being specifically named. Thus where one sold the good will of his business as a newsman, and covenanted thereafter not to exercise that business, and to do his utmost to 'In Hyde v. Dean and Canons of Windsor, Cro. Eliz. 552, 553, it is said by the court, “And a covenant lies against an executor in every case, although he be not named; unless it be such a covenant as is to be performed by the person of the testator, which [the executor] cannot perform." * Marshall v. Broadhurst, 1 Tyrwh. 348, by Lord Lyndhurst. Ante, § 25, pl. 5. Baxter v. Burfield, 2 Strange, 1266. The court here place stress upon the fact that the executor is not named in the contract. There can be no question that contracts of apprenticeship may be so expressed as to bind both parties after the death of the master. But, prima facie, such contracts will be regarded as personal. By Stat. 32 Geo. 3, c. 57, two justices are empowered, upon certain terms, to continue the apprenticeship after the death of the master. |