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ERROR to Dauphin County, Common Pleas.

Replevin by Peter Gloninger against Maria Buehler, William N. Irvine and Peter Keller. George Buehler purchased the goods for which the replevin was brought, and gave his notes for them, with Peter Gloninger, the plaintiff, and George Oves as his securities. The property, at the time of its purchase, was transferred by bill of sale to Gloninger and Oves as their security, but went into the possession of George Buehler, who agreed that Gloninger alone should hold that bill of sale, as a security also for a debt due to him. George Buehler died in the possession of the property, without having paid the debt due to Gloninger, and this replevin was brought against the defendants, who were his administrators, for the goods mentioned in the bill of sale. The defendants, after having shown that they were administrators, had given bond and filed an inventory of the goods of their intestate, offered to prove that George Buehler was insolvent, and that the value of these goods was necessary for the payment of his debts. This evidence was objected to by the plaintiff, and rejected; the court being of opinion that the Statute 13 Eliz. was not applicable so as to bar the plaintiff's recovery, and this was the assignment of error.

H. Alrichs and M' Clure, for plaintiffs in error.
Foster and Weidman, for defendants in error.

The opinion of the court was delivered by

ROGERS, J. The attention of the court has been particularly directed to two errors on which the plaintiff in error mainly relies. First, the exclusion of evidence of the insolvency of Buehler the intestate; and secondly, that part of the charge which declares that the transfer of the property to the plaintiff and Oves, and to the plaintiff himself, was good against the defendants; and that they can make no defence that Buehler himself might not have made. The points depend upon the same principle, and may be considered together. There is no doubt that the Statute of 13 Eliz. only makes void a deed as against creditors, but not against the party himself, his executors or administrators; as against them it remains a good deed. 5 Binn. 109; 6 Serg. & Rawle, 531; 1 Yeates, 291; 4 Yeates, 95; and in Osborne v. Moss, 7 Johns. Rep. 161, it is decided, that when a person makes a fraudulent conveyance of his goods to another for the purpose of defeating his creditors, and dies intestate, the conveyance, though void as against creditors, is good against the intestate; and an action may be maintained against the administrator for the goods. The law is the same although the administrator may be a creditor of the fraudulent

intestate. Horner v. Leader, Cro. Jac. 270; Yelv. 196, which is cited and relied on in Osborne v. Moss, is to the same point. In Horner v. Leader, the intestate made a grant of his goods to B. to cheat his creditors, and he kept possession of the goods and died. B. then sued the administrator for the goods, and he pleaded this covin and fraud, and the Statute of Elizabeth, which declares all such gifts and grants void as against creditors. The plaintiff replied that the defendant, the administrator, had assets in his hands to satisfy the debts demanded, and that the deed of gift was made upon good consideration, &c. It is true that the replication was withdrawn, but yet in neither of the cases cited did it appear that there was not sufficient assets to pay the debts. There being no averment that the estate was insolvent, the presumption was, that the administrators had assets in their hands, sufficient to pay the debts; and if so, these decisions are in strict accordance with the general principle, about which there is no dispute. Inasmuch as we are to take it, that the estate of Buehler is insolvent, this is substantially a contest between the fraudulent grantee and the creditors of the fraudulent grantor, and as such, comes within the prohibition of the Statute of 13 Elizabeth. The administrator is the trustee of the creditors, and in that capacity is bound to protect their interest. The personal representatives, in fact, have no interest in the controversy, as the case supposes that the assets are insufficient to pay the debts of the intestate.

NOTE.

Judgment reversed, and a venire de novo awarded.1

As to assets acquired by an executor after his testator's death, see 2 Wms. Exec. (8th ed.) 1662-1667.

1 But see Estes v. Howland, 15 R. I. 127 (1885); and cf. Holland v. Cruft, 20 Pick. 321 (1838). See also Bethel v. Stanhope, Cro. El. 810 (1601), and 1 Am. Lead. Cas. *43, 44.

CHAPTER VIII.

ALIENATION BY EXECUTORS AND ADMINISTRATORS.

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ANONYMOUS.
1536.

[Reported Dyer 23 b, pl. 146.]

KNIGHTLEY asked this question: If two executors have a term, and one grants to a stranger all that belongs to him, how much of the term shall pass? And the COURT thought, that all the whole term passed, inasmuch as each of them has an entire authority and interest in the term, as executor; but of other joint-tenants of a term it is otherwise : so there is a diversity.

NOTE. In Hudson v. Hudson, 1 Atk. 460 (1737) there is a dictum of LORD HARDWICKE, C., "that one administrator cannot release a debt, or convey an interest, so as to bind the other, and that the case of an administrator differs from that of an executor." But in Jacomb v. Harwood, 2 Ves. Sr. 265, 267, 268 (1751), SIR JOHN STRANGE, M. R., said that in Willand v. Fenn the Court of King's Bench, after three arguments, held "that one administrator stood on the same ground and foundation with one executor." (See, however, 1 Selwyn, N. P. (13th ed.) 692 note.) And it seems now settled that there is no difference between executors and administrators in this respect. See Smith v. Everett, 27 Beav. 446, 454 (1859). Cf. 2 Wms. Exec. (8th ed.) 954.

"One co-executor may release a debt, and do other acts, without his companion, and he may therefore assent to a bequest to himself." So held by the Court of King's Bench, in Townson v. Tickell, 1 B. & Ald. 31, 40 (1819). See Cole v. Miles, 10 Hare, 179 (1852).

One executor, however, as such, cannot bind his co-executors, by a contract. See Turner v. Hardey, 9 M. & W. 770 (1842).

THOMLINSON v. SMITH.

CHANCERY. 1678.

[Reported Finch, 378.]

WILLIAM ADAMS the father of the plaintiffs Mary, Anne, and Joan, being possessed of a term for years of an inn called the Black Horse Inn, situate in St. Thomas Street in Bristol, did about the year 1654, by his last will devise the same to his son Roger Adams for ten years after the decease of his wife, or change of her widowhood, and after

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