Majority
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 the devastavit of such executor, for he is by statute liable upon the 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 administration de bonis non, and then proceeded to the recovery, if by-no other way, by bill in equity.