Gardner & Hyer v. Miller

Per Curiam. It is, a general rule, that if a creditor appoint his debtor an executor of his will, it operates as a release or bequest of the debt. But there áre exceptions to this rule. It seems to be now settled in equity, that the appointment of a debtor as executor, is no more than a parting with the action; and that the debt remains a trust for creditors or the next of kin. (Cary v. Goodinge, 3 Bro. Ch. 110.) At law, all the executors are required to represent the testator; and all must join as plaintiffs in an action. As executors, therefore, one cannot sue his co-executor. Each may receive and pay debts as executor ; and each has an equal right to the possession of the trust fund. In their representative character, they are not liable to a suit by one against the other. There is no doubt, that a suit could not have been sustained tor the original debt, by two of the executors against this defendant, w.ho was appointed joint executor with them. “ If the obligee makes the obligor and others executors, and the obligor refuses, but the others administer, and the obligor dies first, yet the debt is released ; for the obligor, notwithstanding the refusal, might have come' in and administered; and the probate by the others was for his benefit.” (Wankford v. Wankford, 1 Salk. 299. per Holt, Ch. J.) But the question here is, whether the defendant has not, by his own voluntary and express act, in giving the bond to his two co-executors, waived his privilege and protection as executor, quoad this debt. We have no right to consider the bond as senseless and void; or that the liability as between the executors is now exactly as it was before the bond was given. The parties undoubtedly meant something by giving and receiving the bond ; and we are bound to intend whatever might reasonably have occurred, in order to justify and uphold this security. The bond was given before the defendant had assumed the office of executor; and we may fairly infer, that in consideration of receiving this bond, the plaintiffs became indi [191] vidually responsible for the amount of this .debt, in the course of administration. They had been, for a long time, acting as executors; but this defendant did not elect to become an acting executor until about a year after he gave the bond. We have a right to presume that the assets were insufficient to pay the debts and legacies; and in that event, the defendant, although an executor, was bound to pay his original debt; and his omission to pay it would be a devastavit on his part. We consider the bond as given to the plaintiffs in their private, not in their representative character. They are, to be sure, styled Executors of John Gardner, but that is merely descriptio personarum. The plaintiffs are, therefore, entitled to judgment. Judgment for the plaintiffs.