DEVASTAVIT. A devastavit is a mis-management and waste by an executor,
administrator, or other trustee of the estate and effects trusted to him, as
such, by which a loss occurs.
2. It takes place by direct abuse, by mal-administration, and by
3.-1. By direct abuse. This takes place when the executor,
administrator, or trustee, sells, embezzles, or converts to his own use, the
goods entrusted to him; Com. Dig. Administration, I 1; releases a claim due
to the estate; 8 Bac. Abr. 700; Hob. 266; Cro. Eliz. 43; 7 John. R. 404; 9
Mass. 352; or surrenders a lease below its value. 2 John. Cas. 376; 3 P.
Wms. 330. These instances sufficiently show that any willful waste of the
property will be considered as a direct devastavit.
4.-2. By mal-administration. Devastavit by mal-administration most
frequently occurs by the payment of claims which were not due nor owing; or
by paying others out of the order in which they ought to be paid; or by the
payment of legacies before all the, debts have been satisfied. 4 Serg. &
Rawle, 394; 5 Rawle, 266.
5.-3. By neglect. Negligence on the part of an executor,
administrator, or trustee, may equally tend to the waste of the estate, as
the direct destruction or mal-administration of the assets, and render him
guilty of a devastavit. The neglect to sell the goods at a fair price,
within a reasonable time, or, if they are perishable goods, before they are
wasted, will be a devastavit. And a neglect to collect a doubtful debt,
which by proper exertion might have been collected, will be so considered.
Bac. Ab. Executors, L.
6. The law requires from trustees, good faith and due diligence, the
want of which is punished by making them responsible for the losses which
may be sustained by the property entrusted to them when, therefore, a party
has been guilty of a devastavit, he is required to. make up the loss out of
his own estate. Vide Com. Dig. Administration, I; 11 Vin. Ab. 306; 1 Supp.
to Ves. jr. 209; 1 Vern. 328; 7 East, R. 257 1 Binn. 194; 1 Serg. & Rawle,
241 1 John. R. 396; 1 Caines' Cas. 96 Bac. Ab. Executor, L; 11 Toull. 58,
59, n. 48.