Opinion
July Term, 1818.
From Cumberland.
Executors and administrators. The promise of an executor, having assets at the time of the promise, that he will pay a debt of his testator, is valid: such promise makes the debt personal, and assumpsit will lie on it.
THIS was an action of assumpsit, in which the plaintiff declared that the defendant's testator, being executor of the last will of Robert Troy, deceased, and having assets in his hands, and the said Robert Troy being at his death indebted to the plaintiff, in consideration thereof, promised in writing to pay to the plaintiff the said debt, and it was submitted to this Court, whether upon this declaration the plaintiff was entitled to judgment against the defendant, to be satisfied out of the estate of her testator in her hands.
The case is, that Troy was indebted to the plaintiff and died, having appointed Henry W. Harrington his executor, to whose hands sufficient assets came to pay the plaintiff's debt; and that Harrington, having assets, promised the plaintiff, in consideration thereof, to pay the said debt. That he afterwards died, leaving the defendant his executrix. This action is brought against the defendant as executrix, to subject her testator's estate upon the said promise. The defendant pleaded non assumpsit, and issue being joined, a verdict was found for the plaintiff. A motion is now made in arrest of judgment, because there was no consideration for this promise. I always considered it as a point well settled that the promise of an executor, having assets at the time of the promise, to pay his testator's debt, was valid. Upon looking into the authorities we find many cases wherein it has been expressly decided, besides numerous sayings to the same effect in elementary books. Cro., Eliz., 91; 1 Ves., 126; 9 Co., 94. Such a promise is enforced and supported by the consideration of the (333) executor's liability as executor, to pay the plaintiff's demand. He is liable by reason of the assets; and therefore the having of assets is indispensable in such a case. When I speak of assets, as relates to the subject, I mean such estate of the testator as would at that time be liable to the debt of the creditor in a suit at law. If, for example, the creditor be so by simple contract, the assets in the hands of the executor necessary to support the assumpsit of the executor must be such as the creditor would be entitled to recover if he were then suing the executor in his representative capacity for his debt. The executor is the mere holder, as it were, of money, which is in justice and conscience the money of another person. The consideration may therefore be said to consist of the strongest moral obligation as well as legal liability. The only case relied on to contradict this reasoning and the strong current of authorities for the plaintiff is that of Rann v. Hughes, 7 Term, 350. But in that case there was no averment of assets. It is said, indeed, that Hughes died possessed of sufficient effects; but it is not alleged that they ever came to the defendant's hands, much less that he had them at the time of his promise. The note of the case in Term Reports seems to me to be a confused one; but its accuracy in this respect is evinced by what fell from Lord Mansfield in Hawks v. Saunders, Cowp., 291, where he mentions and comments on this circumstance.
It has been contended that the defendant would have been at liberty upon the trial to show that her testator, after his promise, applied the assets to other debts of the testator Troy, and thereby became excused from the payment of this debt. If his promise were good at all, it made the debt personal. There is no halfway ground; Harrington must be considered as liable only in his representative capacity, if he be allowed to show the state of the assets subsequent to the time of his promise. But when we say that by his promise he became personally (334) bound, we lose sight of the assets altogether, except so far as regards their situation at the time the promise was made. In that respect we are obliged to examine into them for the purpose of ascertaining whether the promise was then good, or a nudum pactum. If he then had assets, the promise is good, and he becomes personally liable. It appears to me that settles the other point, for whenever one becomes personally bound for the debt of another (no matter how) it becomes his own debt, and must be paid out of his own estate. Nothing but actual satisfaction, or other matter which would discharge him from any other of his own personal debts, will discharge him from this. In Bam's case, 9 Co., 94, Lord Coke is express that an executor can only show upon the day of trial that he had no assets at the time of the promise. The short note of Cleverly v. Brett, cited in Pearson v. Henry, 5 Term, 6, relates as well as the principal case to the question of assets, on the plea of plene administravit in a suit against the executor as such; which is totally different from this. There the question is what assets the defendant had at the time of the plea pleaded; and does not regard the personal liability of the defendant at all.
That an action will lie against an administrator or executor upon a promise to pay in consideration of assets, seems clear from divers cases. Cro. Eliz., 91; Cowp., 284, 289; 1 Ves., 125. It is true that the cases cited from Cowper were cases of legacies sued for; and although they have been much shaken, if not overruled, in the case of Dicks v. Street, 5 Term, 690. The principle of the decision in this last case rested upon a different ground from that now before the Court. Two of three of the judges held that an action would not lie at common law for a legacy, because courts of law had no power to compel a husband, who sued for his wife's legacy, to make a settlement upon her; whereas a court of equity had such (335) power. The reasoning in that case does not apply to debts which an executor or administrator promises to pay in consideration of assets. If they have money in hand, there is no reason why they should not pay. If they have property which they are diligently converting into money, and some accident happen to it not within their control, or, if in the meantime they have notice of debts of higher dignity, they ought to be at liberty to show these things in their defense. 9 Co., 94. The promise, as was said by Lord Mansfield, 5 Term, 8, only eases the creditor from proving assets, and throws the onus on the other side. Judgment for the plaintiff.
Cited: Williams v. Chaffin, 13 N.C. 335; Oates v. Lilly, 84 N.C. 645; McLean v. McLean, 88 N.C. 396; Banking Co., v. Morehead, 116 N.C. 416; LeRoy v. Jacobosky, 136 N.C. 450.