SUITS BY OR AGAINST EXECUTORS AND AD MINISTRATORS. 1. By. In general, a right of action founded on a tort or malfeasance dies with the person. 'But personal actions found ed upon any obligation, contract, debt, cove nant, or other duty to be performed, survive, and the executor may maintain them ; Cowp. 375 ; 1 Wms. Saund. 216, n. See Brannock v. Stocker, 76 Ind. 573 ; 5 B. & Ad. 78. By statutes in England and the United States this common-law right is much extended. An executor may now have trespass, trover, etc., for injuries done to the intestate during his lifetime. Except for slander, for libels, and for injuries inflicted on the person, executors may bring personal actions, and are •liable in the same manner as the deceased would have been ; 2 Brod. & B. 102 ; Van Rensselaer's Ex'rs v. Platner's Ex'rs, 2 Johns. Cas.. (N. Y.) 17 ; Kennerly v. Wilson, 1 Md. 102 ; Tait v. Parkman, 15 Ala. 253 ; Martin v. Baker, 5 Blackf. (Ind.) 232 ; Rice's Heirs v. Spots wood's Heirs, 6 T. B. Monr. (Ky.) 40, 17 Am. Dec. 115; Backus' Adm'rs v. McCoy, 3 Ohio 211, 17 Am. Dec. 585 ; Hagarty v. Morris, 2 W. N. C. (Pa.) 154. See Coleman v. Wood worth, 28 Cal. 567 ; Manwell v. Briggs, 17 Vt. 176; Richardson v. R. Co., 98 Mass. 85. Should his death have been caused by the negligence of any one, they may bring an ac tion for the benefit of the family in some states. Executors may also sue for stocks and annuities, as being personal property. A right of action for the breach of a parol con tract for the sale of land survives to the ex ecutors ; Irwin v. Hamilton, 6 S. & R. (Pa.) 208. So they may sue for an insurance pol icy.
The courts of New Jersey will enforce the Pennsylvania statute giving a right of action to the widow of one who dies of injuries in flicted by the wrongful act of another, that statute not being repugnant to the policy of the former state; but such an action cannot be brought in New Jersey by the personal representative of the deceased, as required by the laws of that state in similar 'cases; Lower v. Segal, 59 N. J. L. 66, 34 Atl. 945.
For actions accruing after the testator's death, the executor may sue either in his own name or as executor. This is true of actions for tort, as trespass or trover, actions on contract and on negotiable paper ; 3 Nev. & M. 391; Patchen v. Wilson, 4 Hill (N. Y.) 57 ; Williams v. Moore, 9 Pick. (Mass.) 432 ; Hail ey v. Wheeler, 49 N. C. 159, So he may bring replevin in his own name ; Branch v. Branch, 6 Fla. 314; and so, in short, wherever the money, when recovered, will be assets, the executor may sue as executor ; Flower's Ex'rs v. Garr, 20 Wend. (N. Y.) 668 ; Sheets v. Pa body, 6 Blackf. (Ind.) 120, 38 Am. Dec. 132 ; Biddle v. Wilkins, 1 Pet. (U. S.) 686, 7 L. Ed. 315. See Pope's Heirs v. Boyd's Adm'x, 22 Ark. 535; Linsenbigler v. Gourley, 56 Pa. 166, 94 Am. Dec. 51. An executor cannot recover in ejectment without producing the will; Mays v. Killen, 56 Ga. 527 ; Horn v. Johnson, 87 Ga. 448, 13 S. E. 633.
2. Against. An action of trespass qua/re clausunt fregit survives against the executor; McCallion v. Gegan, 9 Phila. (Pa.) 240. So also in causes of action wholly occurring aft er the testator's death, the executor is liable individually ; Kerchner v. McRae, 80 N. C. 219. The actions of trespass and trover do not survive against the executors of deceased defendants. But the action of replevin does. The general rule is that causes of action ex contractu survive, while those ex delicto do not. "Executors and administrators are the representatives of the personal property of the deceased and not of his wrongs except so far as the tortious act complained of was benefiCial to his estate ;" 2 Kent 416.
As an administrator merely stands in place. of the deceased, and does not represent cred itors, he cannot file a bill to set aside a con veyance in fraud of creditors, the right to do so being in the creditors defrauded ; Hoyt v. Northup, 256 Ill. 604, 100 N. E. 164.