If the defendant below intermarries after the judgment, and
before the service of the writ of error, the service of the
citation upon the husband is sufficient.
Upon the issue of
plene administravit, the jury must
find specially the amount of assets in the hands of the executor,
otherwise the court cannot render judgment upon the verdict.
An executor is liable for the amount of assets in his hands, and
for no more.
Error to the Circuit Court for the District of Columbia, sitting
at Alexandria, in an action of assumpsit brought by the defendant
in error against the plaintiff in error, as executor.
Upon the issues of
nonassumpsit and
plene
administravit, the jury found a general verdict, which was
recorded in this form: "We of the jury find the issues for the
plaintiff and assess the damages to $220.95." Upon which verdict
the judgment of the court was
"That the plaintiff recover against the defendant her damages
aforesaid in form aforesaid assessed, and also her costs by her
about her suit in this behalf expended, to be levied of the goods
and chattels of the said Bryan Fairfax, deceased, at the time of
his death, in the hands of the said defendant to be administered,
if so much, &c., but if he hath not so much, then the costs
aforesaid to be levied of the proper goods and chattels of the said
defendant; and the said defendant in mercy,"
&c.
The error relied upon by the plaintiff in error was that the
jury had not found the amount of assets in his hands to be
administered.
Page 9 U. S. 20
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court to
the following effect:
Page 9 U. S. 21
The verdict ought to have found the amount of the assets in the
hands of the defendant to be administered.
The cases cited to show that the judgment must be for the whole
sum, if the verdict find any assets, have been overruled. This is
declared by Lord Mansfield in a case cited in Gwillim's edition of
Bac.Abr., and the law is now well understood to be that the
executor is only liable for the amount of assets found by the jury.
In Virginia, the law has been so settled. The case cited from 2
Wash. Rep. is precisely in point. The counsel for the defendant in
error attempted to show a distinction arising from the difference
of form in which the verdicts were rendered. But the two verdicts
appear to the Court to be precisely alike in substance.
The defendant in error relies on the form of the issue. She
contends that as the replication alleges that the defendant has
assets more than sufficient to satisfy the debt, the finding of
that issue for the plaintiff below in effect finding that the
defendant has assets more than sufficient to satisfy the debt, and
if so, it is wholly immaterial what the real amount of assets is.
But if this were the issue and the demand were $500 dollars, if the
jury should find that the defendant had assets to the amount of
$499 dollars, the judgment must be for the defendant.
But the law is not so. An executor is liable for the amount of
assets in his hands, and not more.
The issue really is whether the defendant has any, and what
amount of assets in his hands.
Judgment reversed.
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