#### *Kayser Ex’or &c. v. Disher.

April 1838,

Richmond.

Legatees — Action on Promise of Executor as Such to Pay Legacy — Judgment.—In assumpsit by a legatee against an executor for a legacy, one count in the declaration alleges a promise made by the defendant, as executor, to pay the legacy: Held, this is a count against the executor in his representative cnaracter, upon which the judgment can only be de bonis testatorls.

Same — Recovery of Legacy* — How Action Must Be Brought — Judgment.—An action at law by a legatee, against an executor for a legacy, on the executor’s promise to pay it, must be brought against the executor-in his individual, not in his representative, character ; and the judgment In such case must be de bonis propriis.

Executors — Suits against — Misjoinder of Counts.† — If in a declaration in assumpsit against an executor, there be one count against him in his representative, and others against him in his individual, character ; this is a misjoinder of action, fatal on general demurrer.

Assumpsit by Disher against Kayser executor of Circle, in the circuit court of Alleghany. The declaration complained of Kayser executor of Circle, and contained five counts. The first count alleged, that the defendant executor as aforesaid, by his promissory note in writing, was indebted to the plaintiff one of the legatees of Circle, in the sum of 459 dollars, the balance due the plaintiff as such legatee from the defendant as executor as aforesaid ; and being so indebted, the defendant as executor as aforesaid, in consideration thereof, undertook and promised, by his said promissory note, to pay the sum of money to the plaintiff, when the defendant should be thereto requested.- — The second count was like the first, except that it alleged, that defendant executor as aforesaid (not as executor) promised to pay the money, when the defendant executor as aforesaid should be thereto requested. — The third count alleged, that the defendant executor as aforesaid was indebted to the plaintiff as one of the legatees of Circle, in the sum of 459 dollars, for so much money by the defendant executor as aforesaid had and received to the use of the plaintiff as such legatee ; and *being so indebted, the defendant executor as aforesaid promised the plaintiff to pay him the same. — The fourth count alleged, that the defendant executor as aforesaid, by his promissory note in writing, acknowledged, that on a final settlement of all accounts between the plaintiff one of the legatees of Circle, and the defendant executor of Circle, there was a balance due the plaintiff of 459 dollars ; and in consideration thereof the defendant executor as aforesaid, by his said promissory note, promised to pay the same to the plaintiff. The fifth count alleged, that the defendant and the plaintiff accounted together of and concerning divers sums of money due from the defendant executor as aforesaid, to the plaintiff as one of the legatees of Circle ; and upon that account, the defendant executor as aforesaid was found indebted to the plaintiff the sum of 459 dollars ; and being so found indebted, the defendant executor as aforesaid, in consideration thereof, promised to pay the same to the *plaintiff.**‡*

*133The defendant demurred generally to the declaration, and pleaded non assumpsit. The court overruled the demurrer. Upon the trial of the issue, the jury found a verdict for the plaintiff for 459 dollars with interest &c. for which the court gave him judgment against the defendant, to be levied de bonis testatoris. The defendant applied, by petition to this court, for a supersedeas to the judgment; which was allowed. : .

Stanard for the plaintiff in error.

Johnson for the defendant.

*

Action for Recovery of Legacy — Assent of Executor Necessary. — It is well settled that no action can be maintained at law for a legacy against the executor without an express promise to pay. No admission of assets or mere acknowledgment will be sufficient; for without such promise the executor has a right to require a refunding bond which a court of law cannot compel the creditor to give or the executor to receive. Whitehead v. Coleman, 31 Gratt. 789, citing the principal case as its authority.

And in Nelson v. Cornwell, 11 Gratt. 737, it is said: “No suit will lie at common law to recover a legacy, unless the executor has assented thereto. If no such assent has been given, the remedy is exclusively in the courts of equity. 1 Story’s Equ. Jur. § 591. Since the decision of Deeks v. Strutt, 5 T. R. 690, it has been considered as the settled doctrine in England, that no action at law will lie to recover a general legacy; even though there be assets, and the executor expressly promised to pay it. 2 Roper on Legacies 1798; 1 Story’s Equ. Jur. §§ 591, 592. This doctrine, however, has not been recognized in any case decided by this court; and Tucker, P., in *Kayser, ex’or, v. Disher,*9 *Leigh*357, seemed to be unwilling to admit It in its whole extent.”

In Hairston v. Hall, 3 Call 218, It was held that a legatee cannot recover a slave devised to him without proving the assent of the executor to the legacy.

The principal case was also cited in Staples v. Staples, 85 Va. 81, 7 S. E. Rep. 199.

†

Executors — Suits against — Misjoinder of Counts.— See Epes v. Dudley, 5 Rand. 437; Bishop v. Harrison, 2 Leigh 532; monographic *note*on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.

‡

The instrument on which the action was founded, called a promissory note in the declaration, was copied into the record, though It was not a part of *133it. It was in these words : “ On a final settlement of all accounts with O. Disher, one of the legatees of P. Circle deceased, and J. D Kayser executor of ■said P. Circle, there is a balance due said Disher 459 dollars, this 27th December 1827. (Signed) J. D. Kayser.” — Note in Original Edition. ; : • .

TUCKRR,

P. Itis a subject of regret, that a good cause should be lost for want of : form in the pleadings ; *but we do not perceive how we , can sustain this judgment, without an utter disregard of the essential forms of the law.

The questions argued at the bar arise out of the declaration, to which there is a general demurrer. Upon this demurrer, the objection to the misjoinder of action may be made, together with any other objection, which is matter of substance, and goes to the whole of the counts.

As to misjoinder. The writ is against “J. D. Jtayser executor of Circle.” The declaration complains of “J. D. Kayser executor of Circle.” The first count alleges, “that the said defendant executor as aforesaid” by his promissory note &c. was indebted &c. to the plaintiff “as legatee and being so indebted, in consideration thereof, “he the said defendant as executor as aforesaid promised &c.” This is distinctly the form of the declaration against an executor in his representative character. 1 Chitt. Plead. 205-6, 1 Wms. Saund. 111, 112 ; Brigden v. Parkes, 2 Bos. & Pull. 424; Hawkins & ux. v. Saunders, 1 Cowp. 289, 292 ; Epes’s adm’r v. Dudley adm’r, 5 Rand. 437 ; Bishop v. Harrison’s adm'r, 2 Leigh 532. No other form, indeed, could well be devised for distinguishing the action against the executor, from the action against the individual. It is necessary that some form should be adopted, which shall enable the court, where there is judgment by default, or on demurrer, to decide in what character the judgment should be rendered against the defendant. On this first count, the judgment can only be against the executor as such, for the promise is distinctly laid to have been made by him as executor. It must, therefore, be against the goods and chattels of the testator, and not against the executor personally. . : '

The court does not find it necessary to enquire, whether the other counts are against the executor as such, or not: quacunque via , data, the declaration is bad. Take *it, that they are against him individually : then, as the first is not, there is . a misjoinder. Take it, that they are all against the executor as such : then, they are all of them demands against the estate. But the demand of a legatee for his legacy, is ; ■ not a demand against the estate ; it is a demand against the' executor personally, for part of the estate. And if, as was contended, an action at law will lie for a legacy, either upon an express or implied promise, it is perfectly clear, that it must be brought against the executor in his individual, and not in his representative, character ; and the judgment must be de bonis propriis, not de bonis testatoris. This is clearly shewn by the cases decided in the time of lord Mansfield ; Atkins & ux v. Hill, 1 Cowp. 284; Hawkes & ux. v. Saunders, Id. 289. See also Rose & ux. v. Bowler’s ex’ors, 1 H. Black. 108. Taking all the counts, then, to be of the same character, they are all against the defendant in his representative character, and are, therefore, all of them bad.

In this view of the case, the question mainly argued at the bar, need not be decided : the court gives no opinion upon it. Yet I am myself well satisfied, 1. That an action at law against an executor for a legacy, does not lie without an express promise of the executor to pay. 2. That it does lie upon such promise, where there is a good consideration ; for example, where there are assets to pay the legacy. 3. That if the promise of the executor be unqualified, it amounts to a waiver of the refunding bond which he might have required of the legatee, and removes a great difficulty in the proceeding at law. 4. That if the promise be on condition of a refunding bond being given by the legatee, then, on ordinary principles, there can be no recovery without proof of the performance of that condition. 5. That no admission of assets, or mere acknowledgment of indebtedness, without an express promise, will sustain the action ; for, in those cases, the objection exists, if no other, **that the executor has a right to require a refunding bond from the legatee, : which a court of law cannot compel him to give.

Judgment reversed ; and judgment for the defendant upon the demurrer to the declara- ' tion.