Allen v. Leach

Citations

• 7 Del. Ch. 232

Syllabus

<p>Executors and administrators — remedies against — liabilities of, in individual and representative capacity — decrees pro confessa against; Writ of sequestration de bonis propriis; Devastavit; Practice.</p> <p>1. A decree pro confessa against an ‘administrator, is a decree* in form, de bonis testatoris, and if there are tangible assets in his hands, then process appropriate to that form can alone be had; but if a devastavit has been committed, and there are no available assets, then recourse may be had against him in his individual capacity.</p> <p>2. In a suit against an executor or administrator, when he has been guilty of neglect or waste, he necessarily appears in a double role, as a defender of himself in both hi,s representative and individual character. If his liability as the representative of the deceased is established, it would be conclusive as to his liability as an individual co-extensive with that as administrator. The liability in either case is ascertained in the same way, and by the same degree of proof. The defenses are also the .same.</p> <p>3. If an executor or administrator in a suit against, him m his representative capacity, pleads plene adimnistravit, and on issue it is found against him, his liability to the extent of assets found in his hands, is fixed; and if they be not forthcoming, he must answer out of his own property.</p> <p>4. The word “ administrator ” is descriptive only of the person who has taken upon himself the responsibility of administering the estate of a deceased person. As to the property of the deceased, the administrator stands in his place to dispose of it as the law directs. When the heirs or creditors desire to reach it, it can only be done through himself, and whenever it is found that a devastavit has been committed, his own property can alone be reached through the same channel.</p> <p>5. The remedy upon administration or testamentary bonds is cumulative, and not substitutional.</p> <p>6. Bill filed by complaina