#### Gray v. Swain.

From Bertie.

.all the chattels of an intestate are assets, if the administtator by reasonable diligence niijpa have possessed himself of them.

Thl<5 was an action of Jismnvpdt, to which Defendant ■pleatied the general issue, no assets, and pleas adminis-travit. The Plaintiff to charge the Defendant with assets, proved that the iuiectolo died possessed of a personal estate much larger than would be sufficient to satisfy the Plaintiff** demand, but that before administration was granted, a irespawr took posses,1sioii of all Use assets, and held them a» his own. Administration was granted on the 18th of February, 189.0, and the process of the Plaintiff issued on the 15th of June, 1820. The trespasser was introduced as a witness, and proved that the Defendant had never demanded of him the goods of Isis inlet,tale. It was insisted on the trial below, that it was the duty of the administrator to collect the goods of Ids intestate j and if he did not do so within reasonable iime, he was liable to account, with creditors for the \¡\ *16lue of the goods which he might have recovered, and tiiat they were assets. The presiding Judge instructed the Jury that the issue submitted to them was, whether the a(lm¡nist,rator had assets at the time the process issued, and the issue must be found in the Defendant’s favour, unless the Plaintiff could shew that assets had actually been in the Defendant’s possession. A verdict was rendered for Defendant, and a motion for a new trial having been refused, Plaintiff appealed.

Ruffin, for the Appellant,

insisted that the administra tor was liable ; that he had a property in the goods before they came into his possession ; that they vested in him by relation ; and that he might support trover or trespass for them — (1 Com. Dig. 341.)

Goods are assets, although not in an executor’s hands, and if by his default they do not . sell for value, he is chargeable for the whole — (Toller 153 — 3 Bac. M. 57~— 6 Mod. 181, per Holt — 7 T. Rep. 354.)

The general rule is, that debts due to a testator are not assets until recovered — (3 Bac. M. 58) but if he neglect to bring suit on bond, he shall be charged with the amount of it — (2 Bro. C. C. 1 56.)

The true question with the Jury should have been, was the plea of plene administravit true when pleaded.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The plea of fully administered, avers that the Defendant hath not, nor at the commencement of the suit, or at any time since has had, any goods or chattels which were of his intestate at the time of his decease, in his hands to be administered; and the replication to this plea puts in issue the question, whether the Defendant hath duly administered the assets up to the time of the plea pleaded — (1 Saund. 336.) The intestate died possessed of personal property to a greater amount than svas necessary to pay the Plaintiff’s debt, but this was *17taken 'away by a trespasser before the Defendant administered, and it appears that he has not demanded the property, nor made any effort to possess himself of it. The question then arises, whether such property is, in contemplation of law, a sets iu the hands of the administrator 1 The property which an intestate possesses at the time of his death, devolves on the administrator, who may bring trespass for an injury done to it, after the death of the intestate, and before administration. He may also bring trover though he never had possession, and the sum recovered shall be assets in his hands, the property in these cases drawing after it the possession by relation. When the law thus arms him with these remedies, and enables him to convert into actual and productive assets, every thing personal which the intestate had a right to, it would be incongruous that his own negligence, fraud or collusion, should furnish him with a defence against a creditor, who can only reach the assets through the administrator. The correct principle is, that all the Chattels of the intestate are assets, if tiie administrator by reasonable diligence might have possessed himself of them. Tins the Jury ought to have enquired into in the present case, hut that being excluded by the Court, there ought to be a new trial. s