Olmsted v. Clark

Hinman, J. This is an action of debt against the defendant as executor of Pirineas Clark, on a former judgment against the defendant as such executor, in a suit commenced after the testator’s death. In England an action of this sort, suggesting a devastavit, will lie ; but the leading case in which this was finally established proceeded throughout upon the idea that without such a suggestion it could not be sustained. Wheatley v. Lane, 1 Saund., 216. But in the form in which this suit is brought it appears to be a novelty, and there is obviously no necessity for such an action. The judgment must, in substance, be against the assets in the executor’s hands, as was the case with the first judgíüent; and these of course could be reached [110] by the first as easily as by a subsequent judgment, and in the same way. We need not however determine whether the action will lie, because we are satisfied that there is another good defense to the suit. The defendant, since the former judgment was rendered, has had administration ' granted to him on the estate, which he represented to be insolvent, and it has been regularly settled, and the assets have all been administered and exhausted. But it is said this is no defense, because he was rendered liable in the former suit as executor in his own wrong. We think this result does not follow. On the contrary, it seems to be well settled that an executor in his own wrong may always plead that he has fully administered. G-reenleaf so states the law, and refers to Mountford v. Gibson, 4 East, 441, and other cases in which it has so been held ; and Williams in his book on Executors, vol. 1, p. 144, says, speaking of such an executor, “ If he pleads properly he is not liable beyond the extent of the goods which he has administered.” See also 1 Wms. Saund., 265, note 2, to the same effect. If this action can be sustained at all it must be upon the same principles which would have applied to the first suit. The plaintiff ought not to be suffered to gain any advantage by bringing a needless suit. But by omitting to proceed by scire facias, or in some other mode to obtain satisfaction out of the assets under his first judgment, he ought at least to be held to waive any advantage, if indeed he would be entitled to any under our practice, which perhaps he might have claimed, by the priority of his judgment to the defendant’s taking out administration and settling the estate. On this ground therefore we think a new trial should be granted, and as this defense must necessarily end the case, it is unnecessary to consider any other point made in it. In this opinion the other judges concurred.