The Orphans Legacy, Part 2 · Chapter 26
CHAP. XXVI. Of a Devaſtavit or Waſt in an Executor or Adminiſtrator.
1. What a Devaſtavit or Waſt is; and in what Caſe the Writ of Devaſtaverunt doth lye.
2. How many wayes a Devaſtavit or Waſt may be committed.
3. An Executor or Adminiſtrator in a Devaſtavit or Waſt is chargeable de bonis Propriis.
4. What Acts do not amount to a Waſt; alſo a Waſt committed by one Co-Executor ſhall not charge another.
5. The manner of Proceedings againſt Executors or Adminiſtrators in caſe of a Devaſtavit.
1. A Devaſtavit or Waſt in the Executor or Adminiſtrator is when he doth miſ-adminiſter the Goods and Chattels of the deceaſed, or miſ-manage that Truſt which is repoſed in him, either by the Teſtator as to the Executor, or by the Law as to the Adminiſtrator; and therefore the Writ of Devaſtaverunt bona Teſtatoris lyeth againſt Executors for paying Legacies or Debts without Specialties, to the prejudice of Creditors that have Specialties, before the debts upon the ſaid Specialties be due. For in this Caſe the Executors are as lyable to an Action as if they had waſted the Goods of the Teſtator riotouſly or without cauſe. aCoxels Interpreter. verb. Devaſtaverunt.Likewiſe, the ſaid Writ lyeth againſt Executors or Adminiſtrators, when they deliver the Legacies given by the Teſtator, or make Reſtitution for wrongs done by him, or pay his debts due upon Contracts, or other debts upon Specialties, whoſe dayes of payment are not yet come, &c. and keep not ſufficient in their hands to diſcharge thoſe Debts upon Record or Specialties, which they are compellable formerly by Law to ſatisfie; or do deviate from that method or order enjoyned Executors by the Law in the payment of Debts and Legacies; In ſuch Caſes they ſhall be conſtrained to pay of their own Goods thoſe Duties, which at the firſt by the Law they were compellable to pay, according to the value of that which they delivered, or paid by compulſion; for ſuch payment of Debts or delivery of Legacies as is aforeſaid, before Debts upon Record, or Specialties, whoſe dayes of payment are already come, are accounted in the Law a waſting of the Goods of the deceaſed, as much as if they had given them away without cauſe, or ſold them, and converted them to their own uſe.bTerms of Law, verb. Devaſtaverunt.
2. From the Premiſes it is evident, that a Devaſtavit or Waſt may be committed ſeveral wayes; more particularly thus, viz. When more is expended about the Funerals of the deceaſed, with reſpect had to his Eſtate and degree, than is meet and fit; when Executors pay Legacies in money, or aſſent to Legacies given in other things, before the Debts are paid, not reſerving ſufficient to pay the Debts alſo; when the Debts are not paid in that order and manner as the Law requires, but payment is made of that firſt which ſhould be paid laſt, when there is not ſufficient to pay all; when the Executor gives a Releaſe of a Debt or Duty due to the deceaſed before his Receit thereof; when he Releaſes an Action, whereby he might recover the deceaſeds Goods, or the value thereof; when he ſells the deceaſeds Goods much under value, ſpecially if in a fraudulent way, as to his near friends, to his own uſe, or to have money under hand, or the like. cPlowd. 543. Coke 5. 32. Dr. & Stu. 75. Perk. Sect. 488. 570. Kelway 59.But be the appreyzment what it will, and let the Teſtator ſell for what he will, he ſhall ſtand chargeable to the beſt and utmoſt value towards the Creditors; but a Sheriffs ſale of the Teſtators Goods upon an Execution at an under-value is no waſt in the Executor. dOffic. Exec. p. 246.If an Executor upon a Bond of Two hundred pound forfeited for non-payment of One hundred pound, accept the Principal, or Coſt, or Dammage, and give a Releaſe or Acquittance of the whole forfeited Bond, or of all Actions, or upon Record acknowledge ſatisfaction upon Judgement had; this ſhall be a Devaſtavit or Waſting of ſo much as the penal ſumm is more than is received by him, and ſo far his own Goods ſtand lyable to Creditors not ſatisfied. e13 Ed. 2. Fitzh. 91. Whether the Executors or Adminiſtrators of the waſting Executor dying before he hath anſwered for the W…ſt ſhall be charged. Q. Offi. Exec. p. 253.And ſo doubtleſs is it, if he do but give up the Bond, having no Judgement upon it, though he neither make a Releaſe, nor acknowledge ſatisfaction. The Law is the ſame in Caſe of releaſing of Treſpaſſes, or other cauſes of Action; As if one take away Goods from the Teſtator or his Executor, and he give a Releaſe; this is a Waſt and makes his own Goods lyable: Yet on the other ſide, if an Executor by payment of Two hundred and forty pound or thereabouts, get in a forfeited Bond of Five hundred pound, it ſhall be an Adminiſtration but of Two hundred and forty pound, or of no more than he really paid. f27 H. 8. 6. p. Fitzh.Alſo the Executors verbal agreement to require or ſue for no more, or his giving It is a Devaſtavit in Executors to pay an Ʋſuricus Bond; in Winchcomb and the Biſhop of Wincheſter's Caſe. Hob. 167.a Receit for ſo much as he hath received, or delivering of the Bond into a Friends hands, or into a Court of Equity by way of Security to the Debtor that he ſhall not be ſued for more, is no Devaſtation or Waſt, ſince that the reſt in Law ſtill remains as due and ſuable. gOffic. Exec. p. 248.And upon the Iſſue of Plenè Adminiſtravit the Jury is to find whether the Executor hath Aſſets or not, and not whether a Devaſtation, for that muſt come in by the Sheriffs Return upon the Fieri Facias. hTemp. Eliz. in Caſ. int. Hankford & Metford.Again, the Executors ſubmitting to Arbitrement matters of Debt or Duty due to the Teſtator, or touching his Goods taken away, is another way of diſcharging dangerous to Executors; for if it happen that by the Arbitrators Award the Treſpaſſers or Debtors be diſcharged without full Recompence made, the reſt of the value will ſubject the Executors to the Creditors, becauſe it was their own voluntary act to ſubmit to Arbitrators. iOffic. Exec. ubi ſupra.Or if an Executor allow a Writ to ſuffer Judgement to be had againſt him, upon a Writ which is abatable, he ſhall not have allowance of that, but this ſhall be Return'd as a Devaſtavit. kBrownl. Rep. part. 2. in Caſ. Lawry againſt Aldred and Edmonds; and as in 10 Ed. 3. 503. a.Yea, if money be paid by an Executor upon an uſurious Contract, it is a Devaſtavit. And it was held by the Lord Hobard, That if an Executor pay a Bond made upon an uſurious Contract, it ſhall be a Devaſtavit or Waſt in the Executor.lBrownl. part. 1. Caſes in Law.
3. Theſe and the like Acts are ſaid to be a Devaſtavit or Waſt in the Executor or Adminiſtrator; which being diſcovered againſt him by the Sheriffs Return will charge him de bonis Propriis for ſo much as he hath ſo miſ-adminiſtred; inſomuch that any Creditor may charge him for the Debt due to him from the Teſtator, as for his own proper Debt, and for ſo much Execution ſhall be made againſt him upon his own Body, Lands and Goods. Yea, the Husband ſhall be charged in a Devaſtavit for the Waſt of himſelf or his Wife, where ſhe is an Executrix, whilſt they both live; but after her death it may be otherwiſe: yea, and if a void Adminiſtration happen to be committed, and the Adminiſtrator waſt the Goods, and then Adminiſtration be committed to another; in this caſe the former Adminiſtrator may be charged by the Creditors for the waſt done in his time.
4. But for an Executor or Adminiſtrator without fraud to ſell the Goods of the deceaſed under value, eſpecially where more cannot conveniently be made of them, is no waſt. Nor ſhall one Executor or Adminiſtrator be charged for the waſt done by another; for where there are many joynt-Executors, if only one of them doth commit the waſt, he alone ſhall ſuffer for it. mDyer 185. Co. 5. 32. Old …. of Entries 11. & Dyer 210. Dr. & St…. 78. and ſo held in 12 H. 7. and in Caſ. inter Walter and Sutton. in Com. Pl. Temp. El. and in Caſ. int. Hankford and Metford. Tem. El. & lib. Ent…ies, fol. 227. Kelw. Rep. fol. 23. & 11 H. 6. 38. a. 4 El. Dy. 210. a. The Writ ſo Iſſued againſt the Waſter only. P. 4 H. 8. Rot. 303. Tr. 34 El. & Paſch. 36 Eliz. Offic. Ex. p. 252.So the Executor or Adminiſtrator committing Waſt in the Gift or Sale of any of the Goods of the Defunct, ſhall anſwer it alone, and not he to whom the Goods are ſo given or ſold; yet the Executor or Adminiſtrator of ſuch an Executor or Adminiſtrator ſhall not be queſtion'd for it after his death. Alſo an Executor or Adminiſtrator may lawfully ſell or convert the deceaſeds Goods to his own uſe, ſo as he convert the money thereof to the deceaſeds uſe in payment of Debts or the like, and pay ſo much of his own money as the Goods ſo converted to his uſe are worth; and this ſhall not be imputed to him as a Waſt. Yea, he may ſell any ſpecial Legacy that is bequeathed, and even this ſhall be no Waſt in him, though it be a wrong to the Legatee, in caſe there be Aſſets to pay Debts beſides: But when he hath enough to pay all the Debts and Legacies, then he may diſpoſe of the whole Eſtate how he pleaſe without any prejudice to himſelf or others. nBrowl. Rep. 1. part. 24. 33. 116. 2. part. 81.And note, That the waſting Executor doth not incurr dammage, or make his own Goods lyable for ſatisfaction for the Waſt, further than the value of the Teſtators Goods ſo waſted or miſ-adminiſtred doth amount unto. An Action of Debt was brought againſt Two Executors; one appeared and confeſſed the Action, the other made default; and Judgement was given to recover de bonis Teſtatoris in both their hands; whereupon a Scire Facias iſſued. The Sheriff returned Nihil; but he who made default had waſted the Goods, upon which a Scire Feci iſſued againſt him who had waſted the Goods, and upon Return of the Scire Feci, Execution Vid. 4 Eliz. Dyer 210.was awarded, of his own proper Goods only, without his Co-Executor.
5. If the Executor confeſs he hath Aſſets, ſuppoſing the Executor to be Defendant, then may the Sheriff Return a Devaſtavit. oBrowl. Rep. part. 2. in Coſ. Morgan verſ. Sock. Paſch. 10 Jac.If the cauſe of Action be againſt Executors or Adminiſtrators, the Judgement is to recover the Debt and Dammages of the Teſtators Goods, if the Executor hath ſo much in his hands; and if he hath not, then the Dammages (as was formerly ſhewn) of the Executors or Adminiſtrators own Goods. And if the Sheriff upon a Scire Facias Return a Devaſtavit, then a Fieri Facias or Elegit may be ſued out to levy the Debt and Dammages of the Executors or Adminiſtrators proper Goods. And if the Executor plead, That he never was Executor nor Adminiſtred as Executor, and it be found againſt him that he had Adminiſtred but one penny, the Judgement ſhall be to recover the Debt and Dammages of the Executors own Goods. And in a Caſe of Debt brought upon a Record, the Execution ſhall be brought where the Record remains.pBrownl. Rep. in Caſ. Green verſ. Wilcox. Trin. 44 Eliz.
Judgement was given againſt B. in a debt of One hundred pound in C. B. After the ſaid Judgement he entered into a Statute to J. S. and died Inteſtate; his Wife takes Letters of Adminiſtration, 45 Eliz. B. R. Read & Bearlocks Caſe. Yelv.and removes the Record of the ſaid Debt recovered againſt her Husband into B. R. by Errour; depending the Sute ſhe payes the Debt due upon the Statute to J. S. Afterwards the former Judgement is affirmed. On a Scire Facias againſt the Adminiſtratrix to have Execution, ſhe pleaded payment of the ſaid Statute, beyond which ſhe had not Aſſets. Upon this the Juſtices of the Kings Bench were divided, viz. Popham and Gaudy againſt Fenner and Yelverton. It was referred to the Opinion of the other Juſtices; they joyned in Opinion with Fenner and Yelverton, and judged it a good Plea, and that the paying of the Statute was no Devaſtavit; for at the time of the Execution of the Statute ſhe could not plead the Judgement of C. B. it being then doubtful whether it would be affirmed or not; therefore no default in the Wife-Adminiſtratrix in paying and diſcharging the Statute; for ſhe could not have an Audita Querela, nor any other Remedy to be freed from payment of the Statute, at the time of the Execution thereof.