Alsop v. Mather

Peters, J.

1. An administrator is an agent, who is created, and whose powers and duties are prescribed, by law. The extent of his liability is defined, by the condition of his bond. This, in relation to an administrator de bonis non, is prospective and restricted to estate not administered. No part of ‘the condition of his bond creates or recognizes any privty between him and his predecessors ; nor makes him responsible for any devastavit or default of another, either of omission or commission ; and by the common law, there is no privity between an administrator de bonis non and a preceding executor or administrator. In Allen & al. v. Irwin & al. 1 Serg. & Rawle 549 . 554., Tilghman, Ch. J., in delivering the opinion of the court, said: “There is no privity between the executor and the administrator dc bonis non. So totally unconnected are they, that at common law the administrator de bonis non could not have a scire facias on a judgment obtained by the executor.” The same point was decided in Grout v. Chamberlin, 4 Mass. Rep. 611, 613 . “There is,” said Ch. J. Parsons, “ in law, no privity between an executor and an administrator de bonis non, cum testamento annexo; and a judgment recovered by the executor, cannot be executed, by the succeeding administrator.” The law is the same where an administrator recovers judgraentjand dies: the succeeding administrator cannot execute the judgment, but may bring a new action. Toller 448. 1 Stark. Ev. 192. *587 And the law is the same between an executor or an administrator and the heir or devisee. Mason's devisees v. Peters’ admrs. 1 Munf. 437 . If an administrator & bonis non cannot enforce a judgment recovered by his predecessor, a fortiori a judgment recovered against his predecessor, cannot be enforced against him. They are both inoperative and ineffectual, and open to investigation.

2. The defendants claim, that this judgment is not a valid demand against the executors, and, of course, not against the administrators de bonis non, because it accrued on transactions of the executors after the death of the testator; and it is a well settled rule, that where the executor of a deceased partner continues his share in trade and carries on the business with the surviving partners, the executor becomes a co-partner and personallij liable for the debts of the company. Wightman v. Townroc, 1 Mau. & Selw. 411. And the same point was decided, by this Court, in Nash & al. v. Tinker & al., at Tolland, in 1825. If this was a debt against the executors personally, they could not be liable in their representative character ; and the administrator de bonis non would not be liable for their private debts. This defence is open to the defendants.

3. The proprietors of the Berlin manufactory were, at all times, co-partners. At the time Williams and Holmes commenced their suit in chancery against them, Benjamin Williams and Samuel Kelsey were dead, Nevertheless, the plaintiffs in that suit prosecuted it, not only against the living, but against the representatives of the dead. But there is no case in England or in this country, in law or in equity, of pursuing the effects of a deceased partner, while the surviving partner is solvent. Pendleton v. Phelps, 4 Day 481 . per Livingston, J. The same point was decided, by this Court, in Sturges v. Beach, 1 Conn. Rep. 507 . 509. “There can be no occasion,” said Ch. J. Swift, “to resort to the estate of deceased partners, unless the surviving partner is insolvent;" and there is no intimation in the record, that any of the surviving owners of the Berlin Cotton Manufactory were solvent.

For these reasons, I am of opinion, that there is no error in the judgment complained of.

The other Judges were of the same opinion.

Judgment affirmed.