Speeches
Society of Trust and Estate Practitioners
The operations and present operation of the action in devastavit
The Hon Justice Perram
16 May 2012
I. Introduction
First, an apology to the purists: this address is entitled 'The Origins and Present Operation of the Action in Devastavit' but its
eventual burden, I hope, will be to show you that to speak as that title does of an 'action ' is likely to confuse more than it is
to enlighten.
What is a devastavit? Strictly from the Latin it means 'he has laid waste'. The 4th edition of Stroud 's Judicial Dictionary defines a devastavit to be - and I quote - 'a mismanagement of the estate of a deceased person by his legal representatives "in squandering and misapplying
the assets, contrary to the duty imposed on them"; for which they shall answer out of their own pockets as far as they had,
or might have had, assets of the deceased'.
This definition is largely drawn from an earlier edition Williams on Executors which in turn was drawn from Re Stevens[1] but it does not tell one very much. What kind of squandering? What are the duties which prevent squandering? Is it an action brought
by legatees under a will or by creditors of an estate which has been depleted by the errant executor? If the will has created trusts
what is the difference between this action and a claim for breach of trust? If it is a trust action, how can a creditor claim? -
for a creditor, generally, cannot sue a trustee for breach of trust.
These simple questions indicate the presence of some difficult questions. A measure of their difficulty may be discerned from a consideration
of some statements about devastavit which are, at least on their face, contradictory. I return later to try explain that these statements
but they are a useful starting point.
Some cases talk of the remedy for a devastavit being an action in trespass. Thus in the 1855 decision of Thorne v Kerr[2] Sir William Page Wood VC was moved to say[3] that 'At law, if an executor committed a devastavit the remedy was by action of trespass against him'. This sounds like an action in tort. But compare this with the Delphic remarks
of Sir John Latham in National Executors and Agency Co of Australasia Ltd v Dwyer[4] who was able in a single page to say that a devastavit was usually, if not always, part of an administration suit (a procedure in Chancery to which it will be necessary to return) and
at the same time an action on the case. He said:
The terms "action of devastavit" (that is, an action based upon an allegation of devastavit) and "administration action" are not mutually exclusive. An administration action may or may not be an "action of
devastavit." But an "action of devastavit" will usually, if not always, be an administration action. A breach of duty
by an executor constituting a devastavit is a common basis for an administration action…
A personal action against an executor in which the plaintiff relies upon a devastavit is an action on the case within 21 Jac. I. c. 16, s. 3, now embodied in the Supreme Court Act 1928, sec. 82 (1) (C) (VIII.), and the right of action, so far as it necessarily depends upon a devastavit, is barred six years after the devastavit.
Then there are other statements suggesting that the principles governing devastavit are to be located in the interstices of the old procedures surrounding enforcements of judgments. In Levy v Kum Chah[5] Dixon and Evatt JJ described devastavit in these terms (at 168):
The tenor of the judgment is that the plaintiff do recover the debt and costs to be levied out of the assets of the testator, if the
defendant have so much, but, if not, then the costs out of the defendant 's own property. But if a return of nulla bona testatoris were made to a writ of fi. fa. which included the debt, or if without such a return the plaintiff were able to show that assets of the testator could not be found
in the hands of the defendant for the satisfaction of the judgment, the plaintiff could proceed against the defendant 's own property
and person on the ground that he had committed a devastavit.
But there are other statements which speak in terms of bailment and wilful default. Sir George Jessel in Job v Job[6]put the matter this way:
The rule, then, at law as well as in equity, now is that an executor or administrator is in the position of a gratuitous bailee, who
cannot be charged with the loss of his testator 's assets without wilful default; and a further rule is that though he is liable
in equity in case of wilful default, he cannot be charged with it unless an account is ordered against him on that footing: you cannot
charge him with wilful default without making out a case; and therefore, under the old practice, unless wilful default was charged
in the bill, you could not so charge him in accounts. I think, however, that under the new practice an order charging him with wilful
default may be made at any time on a proper case being made.
What we have then are suggestions that devastavit is a manifestation of at least four or five sets of principles: a tort rule - possibly trespass, possibly trespass on the case; a
principle relating to the enforcement of judgments; a corollary of a bailment possibly arising from the executor 's custody of the
estate (at least in respect of personalty); an aspect of an administration action; and, the remedy of the taking of accounts on a
wilful default basis.
In order to understand and perhaps to resolve these apparent contradictions it is necessary to understand some aspects of the history
of Probate, Chancery and the Royal Courts.
II. Some history
It was not until 1857 that the current jurisdiction in probate was taken from the former ecclesiastical courts and vested, by force
of the Courts of Probate Act 1857, in the new Court of Probate. Until that time the appointment of executors or administrators was a function reposed in the ecclesiastical
courts.[7] Originally these consistory courts had been presided over by the ordinary (the local bishop) and in some areas by the archbishop
(or metropolitan).[8] Over time the contested jurisdiction came to be exercised by courts operated under their supervision. The nature of the rules governing
this jurisdiction were not driven by canon law so much as by local custom and sometimes by statute.[9] A less fashionable part of Magna Carta provided, for example, that after payment of debts owed to the King, and after making provision for 'reasonable parts' due to a man
's wife and children, the chattels of decadents should pass to his executors, who could carry out the final disposition contained
in the last will and testament.[10] But this was not a constant rule and what was required to be left to wives and children came to change across time.
The reference in Magna Carta to chattels is, however, important. It indicates an important limitation on ecclesiastical jurisdiction, namely, at least nominally
an inability to deal with land.[11] It will be necessary shortly to return to the origins of these limitations and the exceptions which grew up around them.
For present purposes it will suffice to note just a few functions of the early ecclesiastical courts. First, these courts had the function of granting probate to wills after which the executor stood in very much the same initial position
as the civilian notion of an heir at law.[12] Secondly, that function included an aspect of contested jurisdiction where the reliability of the will or the capacity of the deceased to
make it were in issue.[13] Right down until 1857 this function remained the exclusive preserve of the ecclesiastical courts. Thirdly, until the time of Lord Nottingham these courts asserted the right to construe the terms of wills; that is, they were not only courts
of probate but also courts of construction. Their loss of that function only occurred when it had become clear that after Chancery
asserted the right to stay proceedings in the ecclesiastical courts.[14] Fourthly, there was a limited jurisdiction of accounts which provided for a list of expenditure to be provided as well as a list of assets;
in effect, a primitive form of account. This was known as the inventory.[15] Fifthly, there was also a limited jurisdiction akin to discovery whereby the assets held by persons might be better known.[16] Sixthly, and perhaps most importantly, there was a jurisdiction to enforce legacies against executors.[17]
Be that as it may these courts retained the exclusive right to grant probate until the establishment of the Court of Probate in 1857.
That jurisdiction related to issues such as capacity and so on. But the authority of the ecclesiastical courts did not run to land.
The authority of the executors, at least in principle, was limited to chattels.[18] The topic of land in medieval times was largely a matter for the Royal Courts and so far as those tilling the land were concerned
the manorial courts. There were initially practical reasons for this relating to the declining system of feudal estates; later there
were political reasons about the relationship between Crown and the large families who jostled for it.
A discussion of the system of feudal tenures is beyond the scope of this paper[19] but a few short points should be noted. Land was not owned but held by vassals of the lord immediately above them. In theory the
highest lord, from whom the royal vassals or tenants in chief held, was the King. But each vassal in the chain below also had the
ability to grant an estate to a further sub-vassal. In return for the estate the vassal (or tenant) was required to proffer service;
originally this often involved military service (by way of the provision of knights) but there were other means by which the obligation
could be discharged, some temporal, others spiritual. In its ultimate form the obligation of service was reduced to common socage
- an obligation to render some kind of useful service or even the payment of money. Lower down the chain towards the level of the
Manor and the villeins (or farm workers) who toiled beneath him different concepts, such as copyhold, were at play.[20]
In such a system the notion of a conveyance of land made no sense. There was nothing to convey for the relationship between each tenant
and his mesne lord was, in a sense, a personal one based on fealty and service. Despite that the common law allowed that such a holding
would devolve on death to the tenant 's heir at law. The heir at law was not determined by any testamentary act, however, but by
the rule of primogeniture; that is, that the eldest son would take the estate if there was one. Related to this was the important
concept was escheat. If there was no heir or the tenant became attainted by treason the estate would escheat to the lord.
In practise the only way, in a modern sense, that property could be conveyed was by the process of granting a further estate to a
tenant beneath one in the feudal chain. That process gave rise to the practice of subinfeudation.[21] What one could not do, however, was to dispose of one 's own interest.
All this changed with Quia Emptores in 1290, a statute of enduring significance. Its effect was, for present purposes, twofold. First, it permitted an estate to be alienated without the permission of the mesne lord. Because Quia Emptores did not bind the Crown this privilege did not extend the tenants-in-chief who held directly from the King but it did apply to everyone
else in the chain below them. Secondly, it prohibited the granting of any further estates by one person to another; that is, it put an end to any further subinfeudation.
This ancient provision is still, in a sense, on the statute books of NSW. Section 36 of the Imperial Acts Application Act 1969 reenacted it in the following form:
36 Alienation of fee simple
Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the
assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.
12 Charles II c 24-The Tenures Abolition Act 1660-s 4.
The fact that subinfeudation was no longer possible meant that the chains of estates could get no longer than they had already become
by the time of Quia Emptores. On the other hand, the fact that land could nevertheless still escheat where there was no heir at law or the tenant was attained
with treason meant the chains of subinfeudated estates could still get shorter even if they could not longer.
An escheat to the Crown from one of its tenants in chief was particularly advantageous to it as it brought back into its ownership
usually a substantial estate. Such a state of affairs was not one about which the kind of large families who were tenants in chief
were enthusiastic. Estate lawyers were in the forefront of the action which ensued. There sprang up after Quia Emptores the concept of the use out of which the modern trust has developed. Once an estate could be conveyed it could be given to trustees
to hold to prevent escheatment. This had the effect of reducing the revenues to the Crown flowing from escheatment. In due course,
Henry VIII enacted the Statute of Uses which was designed with the intent of stamping out the practise but, as is well known, this failed because of the device of the double
use.[22]
These changes brought no direct change to the question of whether land could be devised by will. Where there had not been a successful
inter vivos disposition an estate in land would still devolve on the heir at law or, failing that, would escheat. Viewed from that
perspective, there could be no role for the ecclesiastical courts or their officer, the executor, for there was nothing which could
conceivably devolve under the terms of the will.
However, the picture was not really so clear. To begin with, the interests which the nascent jurisdiction of the Chancellors was recognising
with the 'use' was not itself subject to the same limitations. To put the matter another way: the beneficial interest in an estate
in land might devolve as personalty under the terms of a will to someone who need not be an heir-at-law. It was thus accepted that
equitable interests in land were divisible in Pawlett v Attorney-General.[23] Further, it became recognised that other interests intimately associated with land were not themselves subject to the same limitations.
Thus, to take a well-known example, whilst one might not be able to devise an estate land one might nevertheless deal with the profits
generated by the land by way of crops. Such an interest would be an interest in money which was a chattel real and with this the
ecclesiastical courts could deal.[24]
Thus the limitation on the jurisdiction of the ecclesiastical courts to matters of personalty is not so straightforward as it seems
even in the medieval period. In any event, in 1540 the Statute of Wills finally granted a certain degree of freedom of testation in respect of land.[25] Even after this, however, the ecclesiastical courts did not obtain a jurisdiction with respect to land[26] which continued as the domain of the common law courts.
Thus were the limits on the original ecclesiastical jurisdiction.
It is not altogether clear when the Chancellors started to intervene in the affairs of the deceased. It was however reasonably clear
that the common law would not enforce a legacy.[27] It seems likely that at some stage the Chancellors asserted such a jurisdiction concurrently with that of the ecclesiastical courts.
By the end of the 18th Century the ecclesiastical jurisdiction had become obsolete.[28] This was probably the result of a decision of Lord Hardwicke's given in 1790, Smith v Kempson,[29] whereby proceedings in the ecclesiastical jurisdiction to enforce a legacy were restrained after a bill was brought in Chancery for
administration.
Restraint by the Chancellors of proceedings in other courts was not limited to the ecclesiastical courts. At an early time equity
also entertained suits by individual creditors and legatees restraining, if necessary, any inconsistent subsequent action at law.
By 1792 it had become a feature of the procedure[30] for one creditor (or legatee) to bring the action on behalf of all of the others. There thus came into existence the administration
suit. Initially there was only one form of it - the general administration suit - in which accounts would be taken from all interested
parties. But over time there developed a practice of limiting this somewhat cumbersome procedure to specific and narrow issues. This
became known as the specific administration suit which often enough proceeded on pleadings.[31]
To be clear, a creditor remained free at common law to sue an executor on a debt of the deceased but such a manoeuvre if pursued was
likely to bring about an administration suit in equity one of the first elements of which would be an injunction restraining further
pursuit of the matter at law. Of course, in any such administration suit equity followed the law and applied its rules as to the
priority of debts but a practical effect of the administration suit was to make litigation at law potentially pointless in respect
of deceased estates.
From an executor's perspective equity's procedures were attractive. Because Chancery assumed an authority to interpret the will there
arose a natural venue in which all issues of concern to an executor might be resolved: what the will meant, what the legatees and
creditors were entitled to and so on. This attraction was aided by the jurisdictional decline of the ecclesiastical courts in relation
to the enforcement of legacies and a similar decline at law in respect of the debts of the deceased in relation to personalty. Indeed,
equity went further and even asserted a moderate jurisdiction over land. Where a man left lands, a court of equity enforced against
his heirs-at-law or devisee the claims of creditors by specialty in which the heir was bound but of no other creditors.[32] At the same time, the Chancellors developed powerful procedures such as discovery which only increased the attractiveness from the
perspective of those involved in estate litigation.
With that background it is useful then to turn to the problem which arises when an executor inappropriately parts with estate assets.
III. Devastavit at law
It need hardly be said that the problem of an executor diminishing the estate of the deceased was potentially a problem not only in
the ecclesiastical jurisdiction (there were very early statutes in the thirteenth century directed to this problem[33]) but also at law and in equity. But an additional effect should be noted. Through the means of the administration suit equity came
to assert a concurrent jurisdiction with the ecclesiastical courts in respect of actions for legacies and it also came to assert
a similar concurrent jurisdiction with the Royal Courts in respect to creditors. Not only were these jurisdictions concurrent but
once the administration suit was engaged equity would restrain the pursuit of further remedies in those courts. What this meant in
terms of the problem of waste by executors was that the administration suit potentially threw up different approaches to its resolution.
What then was the approach at law? The common law would only hold an executor liable to the extent of the assets in his hands. But
to avail himself of this principle it was necessary for the executor to plead under the old pleading rules that insufficient assets
had come into his hands to meet the debt. This was done, as Dixon and Evatt JJ explained in Levy v Kum Chah[34]only by the entry of a plea of plene administravit. If there were no assets remaining at all this could be pleaded in the ordinary form. If there were some, but insufficient, assets
remaining the plea would be plene administravit praeter and this would require the executor also to plead the remaining assets (if there were other higher debts these needed to pleaded
as well).
This plea was premised on the due administration of the estate. It could therefore be disproved by the claimant showing that the assets
had ceased to be in the hands of the executor other than in accordance with the terms of the will. When this occurred the plea would
fail. Often in the course defeating the plea there may have been a demonstration that there had been committed a devastavit. But
if this was not shown (perhaps, because it was shown that there were still other unadministered assets) it remained procedurally
possible to prove there had been a devastavit at the level of execution of the judgment. The ordinary process involved the issue
of what we would now call a writ of execution to the sheriff but which was formerly called a writ of fi fa. If there were not sufficient assets of the testator in the hands of the executor the sheriff would return the writ marked nulla bona testoris (no goods of the testator). In that case the plaintiff could then proceed against the executor on a devastavit. At that point a procedural aspect became important. Unless a plea of plene administravit had succeeded the judgment obtained at common law proceeded in a form which precluded the executor from denying that he had sufficient
assets of the testator in his hands.[35] What this meant was that the devastavit would succeed once it was shown that assets had been parted with other than in accordance with the will.
Pausing there to prefigure the point which is coming next, there can, of course, be many situations in which an executor parts with
assets other than in accordance with the terms of the will. Property may be burnt down; assets may be stolen by thieves. Those exigencies
were not able to be brought within the protective effect of the plea of plene administravit and the consequence was that the mere fact that the assets were no longer in the hands of the executor could lead to judgment against
his own assets. That judgment resulted, in strict terms, from the operation of the writ of fi fa. In a general way, it effectively put the executor in the same position in respect of chattels as a bailee for reward, that is, strictly
liable for the loss of the goods regardless of fault.
A good case to illustrate these principles is Crosse v Smith.[36] In that case the unfortunate Mr Smith was a co-executor who had received £400 from the deceased which he had then handed onto
his co-executor, Mr Munt, who had promptly gone bankrupt. The deceased had owed money under a bond and the bondholder sued, inter
alia, Mr Smith. Smith pleaded plene administravit but Lord Ellenborough found the plea unavailable where one executor hands the testator's assets to a co-executor who then defaults.
He put it this way:
As no case at law has yet decided, that an executor once become fully responsible by actual receipt of a part of his testator's property,
for the due administration thereof, can his discharge in respect thereof, as against a creditor seeking satisfaction out of the testator's
assets, either on the score of inevitable accident, as, destruction by fire, loss by robbery, or the like or reasonable confidence
disappointed, or loss by any of the various means which afford excuse to ordinary agents and bailees in cases of loss without any
negligence on their part; I say, as no such case in respect to executors has yet occurred in a Court of Law, we are not from the
particular hardship of the present case authorised to make such a precedent in favour of this defendant.
The reference to ordinary bailees is what we would call gratuitous bailees.
So there are two points to take away from this. The first is that regardless of the taxonomy of the principle in play, the standard imposed by the courts of law on executors in respect of
losing the testator's assets was one of strict liability. It is useful to observe that it resembled in its outcome the torts of trespass
or conversion in the sense of imposing on the executor strict liability for loss of the testator's chattels. The second is a point of taxonomy and it is that what was involved was not a tort. Instead, the executor's liability derived after an anterior
failure of the plea of plene administravit coupled with the insufficiency of assets of the testator available to meet the execution of the judgment. So far as the procedure
played out the reason why there were not sufficient assets did not matter - the judgment simply went against the executor after the
failure of the plea.
So much for devastavit at law.
IV. Devastavit in equity
The due administration of an estate will often enough lead to an executor holding office as a trustee. When this occurs there is no
difficulty in approaching the question of the executor's duties in terms of the law of trusts. Nevertheless, an executor's title
to the estate assets is not one merely of legal ownership. It is an entire ownership in which he holds the assets 'in auter droit'.[38] Despite that difference, however, the procedural mechanism by which allegations of breach of duty by an executor and breach of duty
by a trustee were pursued were the same. In circumstances where the property is bequeathed to the executors as trustees the difference
disappears because, in such a case, the proving of the will constitutes an acceptance of the office of trustee.[39]
In either case, the procedural route pursued was as follows. Usually in the context of an administration suit the creditor or legatee
would seek an account on a wilful default basis. The decision in Thorne v Kerr[40]is an example. The nature of an account on a wilful default basis was recently explained by the Court of Appeal in Juul v Northey[41] to mean 'a passive breach of trust, an omission by a trustee to do something which, as a prudent trustee, he ought to have done -
as distinct from an active breach of trust, that is to say something which the trustee ought not to have done'. I am not so sure
that the concept of wilful default is necessarily limited to passive breaches of trust. I return to Jessel MR's decision in Job v Job[42]in relation to the operation of the Judicature Act 1873 below but it is useful to note in that case that he thought that the executor could only be charged in equity in case of wilful default
and that statement was not in any way limited to passive breaches. In any event, the interstices of the action for account are beyond
the scope of this paper.
The present significant point is that the liability of executor arose on an account as part of an administration suit and that there
was a fault element to it corresponding with the concept of a breach of trust.
V. Intersection between equity and common law
The differences between equity and the common law gave rise to issues at three levels. First, the ability of equity to restrain proceedings at law to protect the integrity of its administration suit had a practical effect
on the utility of an action at law. If I might give a practical example. If an executor found himself in the situation that chattels
of the testator were stolen from him, then if he stood by and allowed himself to be sued at law he ended up being held liable for
the theft. On the other hand, if he were to commence an administration suit restrain the creditor's suit at law and thereby force
the creditor to seek an account in equity he would be vindicated by the more lenient equitable rule. Plainly, no properly advised
executor who, without blame, had lost estate assets would permit proceedings at law to continue against him but would instead immediately
commence an administration suit and, if necessary, seek an injunction restraining the creditor from proceeding at law pending the
administration. For this reason, the actual number of claims at law was reasonably small. Indeed, so far as I can see the number
of reported decisions involving cases which were actually brought at law stands, apart from Crosse v Smith itself, at but one: Lacons v Warmoll.[43]
Secondly,that is not to say the common law position did not continue to be greatly discussed. The present point is that it was discussed almost
entirely in the context of administration suits in equity. Into that category may be placed the decisions in Thorne v Kerr;[44] In re Gale; Blake v Gale;[45] Job v Job;[46] In re Hyatt; Bowles v Hyatt;[47] In re Blow; Governors of St Bartholomew's Hospital v Cambden.[48] Although Latham CJ spoke in National Trustees Executors and Agency Co v Dwyer[49] of the action being an action on the case, the report of that decision shows that what the plaintiffs sought was an account on a
wilful default basis.[50]
The third matter relates to the question of why equity lawyers remained so transfixed with an action at law which appeared to have little ongoing
operation. There were two answers to this. The first was equity's approach of applying the statute of limitations by analogy. In
a number of administration suits various Chancery judges decided that claims against executors based on devastavit allegations were analogous
to the claim at law, that the claim at law was an action on the case and that, therefore, the limitation statute then applying to
actions on the case[51] applied in the administration suit by analogy. The consequence of this reasoning was that such claims became barred in Chancery after
6 years by analogy. The first of the decisions to reason this way was Thorne v Kerr[52] where Sir William Page Wood VC referred to the claim as one in "trespass". The Vice Chancellor's actual statement was this:
At law, if an executor committed a devastavit, the remedy was by action of trespass against him: then came the statute 30 Car. 2, c. 7, made perpetual by 4 & 5 Will. & M c. 34, s 12, which gave against the executor of an executor the same, that is, the personal
remedy which might be had against the executor by reason of the devastavit. That statute has seldom, if ever, been acted on, but the principle is plain - the remedy is founded on the devastavit of the executor, and if it is desired to affect his real estates a bill should be filed by the Plaintiff on behalf of himself and
all the other creditors of that executor, founded on the devastavit; the bond is what leads up to the remedy, but the real foundation of the suit is the devastavit, as to which the remedy is barred by the lapse of six years, this Court following in that respect the analogy of the Courts of law.
For a purist this might be troubling. The original common law principle did not establish that a devastavit was an action in trespass or in case (despite what Latham CJ thought). It was merely the working through of the process of execution
under a writ of fi. fa. after the antecedent failure of a plea of plene administravit. Strictly speaking the liability of the executor did not arise from the commission by him of any tort whatever. So it is, to say
the least, extremely unlikely that the procedure being discussed in Crosse v Smith was a tort claim of any variety. One can test the issue this way by asking how a limitation issue could possibly exist on a matter
which could not arise until the issue of a writ of execution. The explanation may lie, one cannot tell, in a certain ignorance in
equity concerning the niceties of enforcement at law of judgments against executors.
These niceties did not, however, stand in the way of precedent. The view that the common law regarded devastavit as a tort flourished in Chancery in a way which, so far is I can see, it never flourished at law: In re Gale; Blake v Gale[53] at 825 per Bacon VC; In re Hyatt; Bowles v Hyatt[54]at 616 per Chitty J; In re Blow; Governors of St Bartholomew's Hospital v Cambden[55] at 240 per Cozens-Hardy MR, 243 per Swinfen Eady LJ and 251 per Phillimore LJ. Having flourished in equity it then seems to have
cross-contaminated the common law. The common law judges did this, it should be said, solely on the basis of the statements made
by Chancery judges as to the content of the common law: see Lacons v Warmoll.[56] In National Trustees Executors and Agency Co of Australasia Ltd v Dwyer[57] Latham CJ (at 18) referred to Lacons v Warmoll to reach the conclusion that the tort claim was an action on the case. This aspect of these cases is, with respect, confused. There
was no tort; the analogy was unconvincing.
The second reason why the issue remained fascinating for equity lawyers was the operation of the Judicature Act. From 1873, s 25(11) of the Judicature Act 1873 (UK) provided that where there was 'any conflict or variance between the rules of equity and the rules of the common law with reference
to the same matter, the rules of equity shall prevail' and similar provision is now made in New South Wales by s 5 of the Law Reform (Law and Equity) Act 1972 (NSW). In Job v Job[58] Jessel MR concluded that s 25(11) rendered the fault element of both the Chancery suit and the common law claim the same ('The rule,
then, at law as well as in equity, now is that an executor or administrator is in the position of a gratuitous bailee, who cannot
be charged with the loss of his testator's assets without wilful default'). Maitland described this decision as 'the best example
I have found of the operation of sub-section 11': Equity: A Course of Lectures.[59]
VI. Modern relevance
What then of the modern situation? The first observation is that despite the esoterica surrounding the equitable and common law principles
in question the effect of s 25(11) is that, regardless of the procedural path one follows, an executor is not to be held liable without
some form of fault with, most likely, liability arising in situations broadly analogous to those of a trustee or gratuitous bailee.
The second observation is that since the administration suit in equity is alive and well the circumstances in which it would be advantageous
to pursue devastavit at common law must be considered small. Such a suit is attended by the difficulties associated not only with working out what the
claim actually is but also, potentially, of having to master the intricacies of long-interred procedural aspects surrounding the
enforcement of judgments. And for that risk there is no benefit to be gained - the effect of s 25(11) is that the same rule applies
anyway. So viewed pursuit of a 'claim' at law for devastavit appears to have nothing to commend it. Furthermore, once it is understood
that the plea of plene administravit is a pleading in a suit at law it will be seen that it is conceptually irrelevant to an administration
suit.
Williams Mortimer + Sunnucks on Executors Administrators and probate 19th Ed. 2008 ('Williams 19th Ed') at p. 2.
The Oxford History of the Laws of England, Vol I ('The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640's') , p. 392
(Oxford University Press, 1st Ed 2004). Hereafter 'Laws of England' Ch. VII
Laws of England pp. 396-411.
Smith v Kempson (1790) 2 Dick 769; Ashburner on Equity 2nd Ed p 411
Williams on Executors 6th Ed (1867) vol 2 p 1817.
See the very useful discussion Chapter 4 of the 5th Edition of Professor Butt's Land Law. The following discussion is drawn largely from it.
(1667) Hardr 465 at 469; 145 ER 550 at 552 Hale CB
This freedom was not complete. Complete freedom of testation existed in England only between 1891 with the passage of the Mortmain and Charitable Uses Act and 1938 on the introduction of the Inheritance (Family Provision) Act: see Tyler's Family Provision 2nd Ed p. 3.
The Laws of England at p.394 cites the Statute Worcester I, c 66 (1229) as an example.
Williams on Executors p.807.
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