Weld v. M'Clure

The opinion of the court was delivered by Sergeant, J. The incapacity under which an administrator de bonis non laboured, previous to the act of the 24th of February 1834, to recover the assets in the hands of the representatives of a prior executor or administrator who had died, arose from the want of title to the property of the decedent not remaining in specie. That reason does not apply in the case of a dismissed executor or administrator, because the 3d section of the act of the 4th of April 1797, expressly gives to the successor the administration of the unadministered part of the estate, and directs that the dismissed party surrender up the residue of the estate. This residue comprehends [496] all the goods, chattels, property, effects, and moneys of the decedent remaining in his hands. There is no reason why any portion of the estate should longer remain in the hands of an officer whose functions are terminated, and who has become a stranger in respect to the estate, without capacity to administer it himself, or transmit it to others. Here there was a balance due by the dismissed executor, which he ought to have paid over long ago, according to his own petition, when he was permitted to relinquish the office; and it was his duty to do so instanler on being dismissed, that being the express accompaniment annexed by the act of assembly to the privilege of withdrawal from office. Then, if the administrator de bonis non was entitled to receive. that balance, and the executor was directed to pay it over to him, and bound to do so, an action lies to recover it. The decree of a court directing that money be paid, makes it a debt, for which an action lies at common law; and though there might be another remedy by attachment, yet that is not the sole remedy, and in some cases would be less efficient than an action. We are of opinion that the action was maintainable, and that the judgment must be reversed. Judgment reversed, and a venire facias de novo awarded.