State Ex Rel. Morrow v. Fidelity & Deposit Co.

Briscoe, J., delivered the opinion of the Court. This appeal is from a judgment in favor of the defendant upon a demurrer to the plaintiff’s declaration. The suit was instituted by the plaintiff, as administrator d. b. n. c. t. a. of Benjamin C. Pearce’ late of Cecil County, against the defendant corporation as surviving obligor of John S. Wirt, deceased, to recover the sum of $13,515.72 alleged to have been converted and misappropriated by him, as executor, under the will of Benj. C. Pearce.

The facts are fully set forth and stated in the declaration, and for the purposes of the case are admitted by the demurrer to be true. Briefly stated they are as follows: The testator died in 1895, leaving a last will and testament wherein he bequeathed and devised his estate in the following manner. By the first clause of the will, he devised and bequeathed to his wife Ann Jemima Pearce, for and during the term of her natural life, the income, issues and profits of his entire estate, and directed his executor to keep the property safely invested in good and profitable securities, and to pay the income, issues and profits as the same shall accrue to his wife “for and during the .period of her natural life.” By the second item of the will, he gave the principal of the entire estate after the death of his wife to his three children, who are now living. John S. Wirt, his son-in-law, was appointed executor by the will, duly qualified on the 2nd of October, 1895, in the Orphans’ Court of Cecil County, and continued to act as such 1 executor until his death in May, 1904.

The appellant, upon the death of Wirt, was appointed by the Orphans’ Court of Cecil County, administrator d. b. n. c. t. a. of Benjamin C. Pearce, and George R. Ash, of Cecil County, was appointed administrator c. t. a. of John S. Wirt. The declaration states that by the administration account ²⁶² passed in the Orphans’ Court of Cecil County, there appears a balance of $13,515.72 in the hands of the executor (Wirt), distributed to him as such executor. By an order of the Orphans’ Court of this county, he was required to safely invest the amount in good and profitable securities and to pay the income, issues and profits to the widow under the will, but that he failed to invest the whole of the balance distributable in his name as such executor but appropriated to his own use, or to other uses than for the benefit of beneficiaries named in the will, all the'funds, moneys, securities and property (except a portion stated therein) which came to his hands as such executor. And there is a further allegation of the declaration, which is admitted by the demurrer, that there are at present no bonds, notes, evidences of debt, or money in the hands of the personal representatives of the executor belonging to the estate, but they were converted and misappropriated by the executor in his life time.

Now it is quite clear, we think, upon this state of facts that this suit was improperly brought and cannot be maintained by the appellant. It is well established both at common and by the decisions of this Court that an administrator de bonis non cannot bring an action at law to recover for a devastavit committed by a deceased executor. The authority conferred upon an administrator de bond non by sec. 70 of Art. 93 of the Code, is to administer all things “not already administered,” described by the Act as assets, not converted into money and not distributed and delivered or retained by the executor. And by sec. 72 of Art. 93 of the Code it is provided, the Court shall on application of the administrator de bonis non, order the adminis trator of a deceased administrator to deliver