The opinion of the Court was drawn up by
Parker C. J.An objection is taken to the form of the actjonj t,eing debt, and it is indeed not clear that debt will lie, because there is no certain sum to be recovered, and no express contract to pay ; the claim resting wholly upon an implied promise from a principal to indemnify his .urety, or, in one view of the case which has been presented, a similar promise of a surety to contribute in favor of his co-surety ; but we do not wish to decide the case on this point, when the result of our deliberations is, that the plaintiff is not entitled to recover in any form of action.
In the first place, we do not think it is shown by any evidence in the case, that there was any breach of the condition, of the bond during the lifetime of Clark. The non-payment of the legacy of Hannah L. Tyler, and suffering a suit to be commenced, and defending that suit, is alleged as maladministration on his part; but that legacy was disputed by the heirs, and the suit was defended at the instigation of the other legatees, so that the executors were entirely justified in that proceeding. It appears then that while Clark lived, there was no fault in the executors. Upon his death the whole trust devolved upon the surviving executor, Winship, who, by delaying to satisfy the judgment recovered by Hannah L. Tyler, when he had sufficient assets, or at least by delaying to sell the insurance stock, which it appears might have been done, after the judgment recovered, at a loss of not more than ten per cent., suffered it to remain until taken on execution, on which it "was sold at a loss of more than fifty per cent. The vrong done, which was construed to be waste and a breach of the condition of the probate bond, was wholly the act of the surviving executor, and not imputable at all to the deceased executor, Clark. It is not then upon this ground that the plaintiff can recover in this action. Executors are not liable for waste committed by each other, nor, if one receives assets without the knowledge of the other and misapplies them, is the latter, or his estate, liable at the common law. Hargthrope v. Milforth, Cro. Eliz. 318; Toller, 472 *104Bac. Abr. Executors &c., D 2 ; Godolphin, 134 ; Douglass v. Satterlee, 11 Johns. R. 21.1 The case in Cro. Eliz., which is cited in Bacon and Comyns, and may therefore be taken to be good law, is where two executors continued in the trust and one of them committed waste, yet the other was charged only to the amount of assets he had actually received. Surely then, where one dies and the other afterwards commits waste, the estate of the deceased executor ought to be held discharged.
But although this doctrine is not strenuously denied, it is nevertheless insisted that the plaintiff is entitled to recover on the ground of contract, that is, that Clark, being bound jointly and severally with Winship in the bond, is answerable for all Winship’s.acts as well as his own, and that his estate continues liable after his death. Though this position is true to a certain extent, it may well be doubted whether it is so in the degree necessary to support the plaintiff’s claim in this action. The legislature cannot be supposed, in requiring the bond, to have intended an interchange of the liability of executors as it existed at the common law. They may be :ointly liable for all the acts done by either during the continuance of the joint executorship, for it is as executors they are bound, and that liability incurred during the joint trust may continue upon the estate of the one who dies ; and yet when the interest and duty are severed by death or removal of one from office, he may not be liable for acts done by another after the severance. And we are inclined to think that this, so consistent with justice and equity, is the law. All executors, while living and in the enjoyment of the trust, may inspect and control the conduct of each other ; they may watch over the funds ; and they may complain of the misconduct of any one, to the judge of probate, who may in his discretion remove him from the trust; and so there may be no great hardship in their being made answerable for each other. But at the death of one, the whole power devolves upon the survivor, and the representatives of the deceased have no power or means of controlling his conduct, or taking *105the funds into their custody. It would be hard then that they should be answerable for his delinquencies. By the tenor oí their bond, the executors are bound only for the joint executorship ; they may be answerable for all defalcations which accrue during that trust, and their estates be liable for the deficiencies, notwithstanding they have had no participation in the negligence or fraud ; but they are not bound in this manner for acts or neglects which take place after their power has ceased. The survivor succeeds to the whole authority and power, and he alone and those who are sureties for him are responsible.
It has been urged, however, that Clark’s estate, if not answerable as principal for the default of Winship after Clark’s death, is at least liable on the ground of suretiship, Clark being to ■ be considered in the light of a surety ; but this would be changing the character of his engagement. He was principal in the bond, and liable as such, and when discharged from that liability, he incurred no other. We are of opinion therefore that the verdict is right, and judgment must be entered thereon.
See Peter v. Beverly, 10 Peters, 532; 2 Williams on Executors, 1118, et seq.