Salter v. Cain

GOLDTH WAITE, J. — There is no question now. as to the general principle, on which the defendant so strongly relies, and to which he cites so many authorities,-but that is not involved in the present case. An administrator is certainly not responsible, except in the manner pointed out by statute, [Clay’s Digest,] to a subsequent administrator, for moneys which have been collected by him, virtute officii. But the case is widely different, when, after his discharge, or after the revocation of his authority, either directly, by its abrogation, or by tho appointment of another in his stead, he intermeddles with the affairs of the estate, and under pretence of the authority which has been revoked, he collects moneys which are due the estate. The reduction of the demand against the debtor of the estate to judgment, did not change the nature of the debt, so as to invest the defendant with an individual right to it. The debt itself remained an asset of the estate, and after the defendant’s discharge from the administration, he could not legally control the execution. This is very fully shown by the case of Turner v. Davies, 2 Saund. 137. There, Davies, as the administrator of one Spicer, had sued Turner in trover, and recovered judgment. Afterwards, his-grant of administration was revoked, and the administration committed to one John Spicer. Davies, after this revocation, sued out execution, and Turner brought audita querela, and had judgment to quash it, on the ground that Davies’ authority was gone. Whether, at [480] common law, an administrator de bonis non could have the benefit of a judgment obtained by a previous administrator, is not necessary to be examined, as we have a statute upon the subject. 2. By that, it is provided, that when any suit may have been commenced on behalf of, or against the personal representatives of any testator, or intestate, the same may be prosecuted by, or against, any person, &c. who may afterwards succeed to the administration, &c., such person, or persons may, at any time, be made parties, on motion, and the cause shall proceed in the same manner, and judgment thereon be, in all respects, as effectual as if the same were prosecuted by, or against, the parties originally named. When any personal representative, or guardian, shall be displaced, all moneys due to him or her, in such right, by execution or otherwise, shall be paid to his or her successor. [Clay’s Dig. 227, § 30.] It is scarcely possible that language can be more full or explicit, to transfer all rights, whether in suits pending, or to judgments recovered, to a succeeding administrator. When, therefore, after his removal, the defendant received this money, it was an unlawful act, and the right to receive it being vested, by the grant of administration de bonis non, in the plaintiff, it was so much received to his use. Upon this view the error of the charge is'apparent. Judgment reversed and cause remanded.