March 1877 back qualified as his administrator. It does not apTerm. pear that he ever returned any inventory of the estate, or made any settlement of his accounts as administrator. Utterb'k's adm'r V. Cooper. In May 1866, Charles Utterback went to the city of Baltimore to borrow money. He there met with Edward K. Cooper, the plaintiff, who after some negotiation, to be hereafter more particularly considered, advanced as a loan in money and stock the sum of eleven thousand dollars. In order to secure the payment of this sum, Cooper took a deed of trust upon the same tract of land embraced in the trust deed Charles Utterback had previously executed for the benefit of his father. This loan as claimed by Cooper, was based not only upon the fact that Charles Utterback was administrator of his creditor, but upon certain representations made by him, and papers produced tending to show that the debt due Armistead Utterback's estate was satisfied, and the deed of trust discharged. It may be well here to mention that in February 1867 Charles Utterback was removed from his office of administrator, and Charles T. Green was appointed administrator de bonis non of Armistead Utterback. The controversy in this case is between Cooper on the one hand, asserting the priority of his deed of trust, and the administrator de bonis non and the sureties of Charles Utterback on the other, claiming that the debt of Charles Utterback to his father's estate has never been paid and the deed of trust in nowise released or affected. The cause coming on to be heard at the September term, 1870, of the circuit court of Fauquier, the judge of that court was of opinion, that under the circumstances shown by the evidence, the debt due by 1877. March Term. Utterb'k's V. Cooper. Charles Utterback to his father's estate became assets in the hands of the said Charles H. Utterback upon his qualification as administrator; and that upon the debt aforesaid so becoming assets in the hands of the adm'r said Charles H. Utterback, the said deed of trust ceased to operate as a security, and that Cooper, the plaintiff, was therefore entitled to subject the real estate embraced in the deed of trust to the payment of his debt; and he decreed accordingly. From that decree an appeal was taken to this court. The counsel for the appellee, in support of the decision of the circuit court, maintains, that when administration is granted the debtor upon the estate of his creditor, the administrator, being the person to pay and to receive, is considered as having paid the debt and as holding the amount in his hands as assets; and the debt having once become assets, no act of the party can return them back as an obligation. The necessary result of all which is, the debt being gone, the security for its payment is also gone. That this position is untenable can, I think, be demonstrated both upon authority and upon principle. At common law, the appointment of the debtor as executor operated as a release or extinguishment of the debt. Various reasons have been assigned for this rule. By some it is said that the appointment suspends the right of action, and, being once suspended by the voluntary act of the creditor, is gone forever. By other judges it has been said that the appointment is to be regarded in the light of a specific legacy to the debtor for the purpose of discharging the debt. But whatever may have been the reasons for the rule, the rule itself was subject to well established exceptions. For example, it never applied as against the creditors of the testator, unless there were sufficient VOL. XXVIII-34 1877. March assets to pay the debts; because courts of equity would Term. not permit the testator voluntarily thus to withdraw from his estate funds necessary for the payment of his adm'r creditors. Utterb'k's V. Cooper. The rule did not apply where a different intent was manifest on the face of the will, as where a distinct legacy was given by the same instrument to the executor. Lord Thurlow in Carey v. Goodinge, 3 Brown Ch. Cas. 110, and Sir Wm. Grant in Berry v. Usher, 11 Ves. R. 87, 90, held that the appointment of a debtor to be executor is no more than a parting with the action, and should not operate as a release even against legatees. It will thus be seen that courts of equity would not permit an extinguishment of the debt even in the case of executors; and I think there is as little doubt but that in favor of the creditors and legatees, they would when necessary keep alive and enforce all liens given for its payment. The rule itself has been long since abolished in Virginia by statute, and it is now provided, "The appointment of a debtor executor shall not extinguish the debt." Code of 1860, page 597. No such provision was made with reference. to administrators because none was necessary. The granting of administration being the act of law, its acceptance by the debtor was never permitted to work a release or extinguishment of the debt. This distinction is recognized by the best authorities everywhere. In 2 Williams on Executors, page 1126, the doctrine on this subject is thus laid down: "It must be remarked that where the debtor is appointed executor, the suspension of the remedy is the voluntary act of the creditor, and therefore the action is gone forever. But the effect is different where the remedy is suspended by the act of the law. Thus if administration of the effects of a creditor be com 1877. March Utterb'k's adm'r V. mitted to the debtor, this being the act of the law, is only a temporary privation of the remedy. Therefore Term. if the obligor of a bond takes out administration to the obligee, and dies, the administrator de bonis non of the obligee may maintain an action for such debt against Cooper. the executor of the obligor. In 1 Toller on Ex'rs 348, an author of acknowledged merit and accuracy, the same doctrine is laid down in language equally emphatic. I might quote to the same effect the unanimous decision of the court of common pleas, when Sir Edward Coke was chief justice, Needham case, 8 Rep.; S. C., Browne 62, 64; also the opinion of Lord Hardwicke, the greatest of English chancellors, Hudson v. Hudson, 1 Atky. R. 460; 1 West R. Hardwicke 156, 7, 8; but I will content myself with a simple reference to these cases. This precise question has not been adjudicated by this court; but we have in 2 Lomax on Ex'rs 100, and in Robinson's Practice an unqualified approval of the English rule. In the last named work, the author quoting the authorities states: "But after the administration shall be no longer in force, either because of its repeal or of the administrator's death, then an action may lie, for the debt has all along subsisted, and then there may be a proper plaintiff, viz: the administrator of the first intestate." See also Kelsey v. Smith, 1 How. Miss. R. 68–86: Bacon v. Fairman, 6 Conn. R. 121. In opposition to these cases, the learned counsel for the appellee has cited a number of decisions, or, rather, the dicta of certain judges. They are, however, confined to two or three states, principally Ohio and Massachusetts. In one of the Ohio cases, administrators are placed on the same ground with executors; and the reason assigned is, that as the same hand is to March Utterb'k's adm'r V. Cooper. 1877 pay and receive, the right of action is suspended, and Term. being once suspended is always suspended. Bigelow's ex'r v. Bigelow's adm'r, 4 Ohio R. 138. The learned court utterly misconceives the principle upon which the appointment of the debtor as executor operated to extinguish the debt at common law. It was because the right of action was suspended by the voluntary act of the party. But as the granting administration is the act of the law, and as the law does not permit its act to work a wrong, the remedy is only temporarily suspended when the debtor becomes administrator. In regard to the Massachusetts cases, the learned counsel for the appellant has demonstrated that the opinions of judges there fully sustain both views of this question. A careful examination of the decision will show that neither Chief Justice Shaw nor Chief Justice Parker held to the view laid down in the Ohio case just cited. The opinion of Chief Justice Shaw seems to have been, that as the same hand is to pay and to receive, the law presumes as against the debtor himself, that he has done that he was legally bound to do. The persons beneficially interested in the estate may require the administrator to account for his debt as assets, and to credit it in his administration account. They are not bound to do so; they may, if they please, waive this right, and proceed upon the original security for the debt. Sigourney v. Wetherill, 6 Metc. R. 553; Goswick Man. Comp. v. Story, 5 Metc. R. 310; Stephen's adm'r v. Gaylord, 11 Mass. R. 256; Winship v. Bass, 12 Mass. R. 194; Kinney v. Ensign, 18 Pick. R. 232. In the state of New York they have a statute like ours, abolishing the common law rule in regard to executors; but it further provides, that the debt shall be included in the inventory among the credits and effects of the deed, and the executor shall be liable for |