#### Bush v. Beale.

September, 1844,

Lewisburg.

(Absent Brooke and Allen,* J.)

1. Executors—Action on Bond of†—Case at Bar.—A •creditor of a decedent, who has obtained a *decree de bonis testatoris*against the executor, on which an execution has issued, and has been returned *nulla bona,*may maintain an- action against the executor, and his sureties on the executorial bond.

2. Statute—To What Applies.—The statute 1 Rev. Code, ch. 104, § 63, p. 390, applies to creditors by-decree, as well as those by judgment.

Bush, as relator, brought his action of debt in the name of the justices of Botetourt county, against Charles *Beale, on the official bond of the latter, as executor of Christian Charles Long, deceased.

The declaration, after setting forth the obligation and the condition thereof, which is in the form prescribed by law, and after alleging that the defendant had not kept the condition of the bond, but had broken the same, and that he did not well and truly administer the goods, chattels and credits according to law, nor pay the legacies contained in the will, as far as the goods, chattels and credits would extend, and the-law charge-him, proceeds to aver, that in a suit in chancery brought by the plaintiff, against the defendant as executor of Long, an order was made directing the defendant to settle his account of administration on Long’s estate, before a commissioner of the court; that the commissioner made a report, to which there was no exception, by which it appeared, that the defendant had in his hands according to one view of said account, the sum of 2127 dollars 59 cents; or according to another, the sum of 549 dollars 32 cents; and thereupon a decree was rendered, whereby the defendant as executor of Long, was directed to pay out of the assets of his testator, which by the said report appeared to have been in his hands, the sum of 251 dollars 64 cents, the amount of the plaintiff’s claim, with interest thereon from the time it was due till paid, and also his costs: that, on this decree, an execution of fieri facias was issued, and returned no effects in the executor’s *99hands; and that the said sum of money, with interest and costs, remain wholly due and unpaid ; so the defendant hath not kept and performed the condition of the obligation aforesaid. The declaration then avers nonpayment of the penalty' of the bond in the usual form.

The defendant, after a plea of conditions performed, demurred to the declaration, and the court rendered judgment upon the demurrer for the defendant. From this judgment, the plaintiff applied for, and obtained an appeal to this court.

*John T. Anderson, for the appellant.

Stuart, for the appellee.

*

Judge Allen decided tbe cause in the court below.

†

Executors— Action on Bonds.—A creditor of a decedent who has obtained a decree *de bonis testatoris*against the executor on which an execution has issued, and has been returned *nulla bona,*may maintain an action against the executor and his sureties on the executorial bond; and the statute 1 Rev. Code, ch. 164, § 63, p. 390, applies to creditors by decree as well as those by judgment. For this proposition the principal case is cited and approved in Cookus v. Peyton, 1 Gratt. 451; Beale v. Botetourt Justices, 10 Gratt. 279; Franklin v. Depriest, 13 Gratt. 272; Kent v. Cloyd, 30 Gratt. 559. See generally, monographic *note*on “ Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6: monographic *note*on “Official Bonds” appended to Sangster v. Com., 17 Gratt. 124.

STANARD, J.,

delivered the opinion of the court.

The court below having sustained a general demurrer to the declaration, the question is, does the declaration shew a good cause of action?

The suit is on an executor’s bond, and the declaration, after setting out the bond and condition, alleges, generally, that the condition had not been performed, and that the defendant did not duly administer the goods, chattels and credits of the estate according to law; and, especially, that the relator had prosecuted a suit. in equity against the defendant, in the course of which, an account of the assets of his testator in the hands of the defendant the executor, had been taken by a commissioner of the court, which ascertained, that in one view, the defendant had assets to the amount of 2127 dollars 59 cents, and in another, the assets in his hands amounted to 549 dollars 32 cents; that that report was not excepted to, and that thereupon the court had rendered a decree, that the defendant, as executor of Christian C. Bong, should pay out of the assets which by the said report appeared to have been in his hands, the sum of 251 dollars 64 cents, with interest from the 9th of October 1826, till paid, and the costs expended in the prosecution of the suit. It is further alleged, that on this decree a fieri facias had been issued, on which the sheriff returned no assets in the hands of the executor; and that the decree remains wholly due and unpaid ; and so the condition of the bond had not been performed. The declaration in substance sets out a decree in favour of the relator against the executor, assets having been judicially ascertained to be in his hands sufficient to satisfy the decree, the emanation of a fi. fa. on the decree, and the return thereof nulla bona.

*Before the act of 1813, 1 Rev. Code, ch. 104, § 63, p. 390, no action on the executor’s bond could be sustained by a creditor of the testator, until the executor had been Convicted of a devastavit by judgment or decree. The court of appeals had so decided in the case of Catlett v. Carter’s ex’ors, 2 Munf. 24. According to that decision, before a suit could be maintained on the executor’s bond, the creditor was under the necessity of prosecuting two suits against the executor, the first to establish his debt, and then on the return of nulla bona on the first judgment, > a second suit on that judgment, suggesting a devastavit; and having, in that suit, convicted the executor of the devastavit, he was entitled to an action on the executor’s bond; and it was necessary in such suit, to shew by the declaration, that the executor had been convicted of the devastavit. It was to remove the inconvenience of this repetition of suits, that the statute of 1813 was passed. It entitles the party to sue on the executor’s bond, who shall have obtained a judgment against the executor, and issued execution thereon, which had been returned nulla bona. Before that statute, such judgment, execution, and return thereon, was the matter to allege in a declaration, in an action suggesting a devastavit, as the warrant for the suggestion of the devastavit; and such judgment, execution, and return, was prima facie evidence of assets, and the waste of them; and sufficed, unless invalidated by plea and proofs, to come from the defendant, to warrant a verdict and judgment for the plaintiff, in the action suggesting the devastavit. The object of the act of 1813, was to dispense with this intermediate suit; and it dispenses with it, by giving the action on the bond when the plaintiff is in the predicament, according to the pre-existing law, to bring and maintain an action suggesting a devastavit, that is, when he has judgment, and on the execution issued on that judgment, *there has been a return of nulla bona. The stattite substitutes, as the prerequisite of the suit on the bond, the existence of the facts necessary to maintain an action suggesting the devastavit, in place of^ttch suit and judgment therein, for the relator. When the declaration, (as that in question does,) sets out th e matters, the existence of which, the statute declared shall entitle the relator to the action, we cannot say that it shews no cause of action, as we would, were we to say that it is bad on general demurrer. If the relator had obtained a judgment at law for his claim, and an execution thereon had issued, and been returned nulla bona, the- declaration would have been sufficient, and the demurrer ought to have been overruled.

By the statute, the remedy on the bond is given to one who has recovered a judgment, against the executor; and a literal construction confining it to cases technically embraced by the word “judgment,” would not bring within its scope, a creditor who may have established his claim by a decree. I am of opinion, that the statute ought to receive a liberal construction in this regard, and that the case of a decree creditor, being within the mischief, the remedy should be extended to him. Such a deed and return of nulla bona on the execution issued on it, would support an action suggesting a devastavit.

The other judges concurred. Judgment reversed, demurrer overruled, and cause remanded for farther proceedings.