WILSON v. McNATT, 1 Del. Cas. 51 (1794)

Wilson’s Red Book, 52

ELIZABETH WILSON v. MAJOR McNATT and MARY, his wife, Administrators of James White, Junior, Executor of James White, Senior, who was surviving Executor of Andrew White.

Court of Common Pleas of Delaware, Kent County.
November, 1794.

Case, for balance of account of White in Orphans’ Court.

Motion by Fisher for defendant for a nonsuit because the administrator of an executor is not liable, and read 2 Bl.Comm. 506: “The administrator of A’s executor is not the representative of A.”
Clark for plaintiff cited 2 Bac.Abr. 446.

PER CURIAM.

The Orphans’ Court is a court of record. James White’s settlement there is good. James White, Senior, was answerable as executor of Andrew White, and James White, Junior, was liable as executor of James White, Senior. Then, when he is dead, who is liable? Answer, his administrator; this is a liquidated debt. But if no assets of James, Senior, is pleaded and proved, it would be otherwise.

Trial and verdict for plaintiff.

N.B. It is very true that a rightful executor or administrator to another executor is liable as far as he has assets to make good th devastavit of such executor, for he is by statute liable upon th devastavit, so far as he has assets; and it is just, for his own estate should be liable for his waste. But I cannot think this determination right, the statute saying “who shall waste” etc. Vide
2 Bac.Abr. 446, 432. The plaintiff should have taken administratio de bonis non, and then proceeded to the recovery, if by-no
other way, by bill in equity.

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