Definition
A writ issued against an executor following an ordinary judgment obtained against that executor for a debt owed by the testator (the deceased person whose estate the executor administers). The writ directs the sheriff to levy execution against the goods of the testator's estate in the executor's hands. If the sheriff returns the writ with a finding of nulla bona (no goods) accompanied by a finding of devastavit (waste of the estate), the creditor may then proceed against the executor's own personal property by suing out a fieri facias de bonis propriis.
Common Confusion
TORIS should not be confused with the writ of fieri facias de bonis propriis, which is the subsequent and distinct writ that reaches the executor's personal assets. TORIS is the first step in a two-stage execution sequence: it targets estate assets first. Only when that writ fails — and a devastavit is established — does the creditor gain access to the executor's own property. Conflating the two obscures the critical legal finding of devastavit that bridges them.
Why It Matters in Research
TORIS is a narrow procedural writ belonging to the historical law of executors and estate administration, and researchers are unlikely to encounter it outside of older English common law materials and American cases or treatises from the eighteenth and nineteenth centuries. Its significance is almost entirely historical.
Several navigational points are worth noting. First, the term appears as part of a cluster of related writs governing execution against fiduciaries — nulla bona, devastavit, fieri facias de bonis propriis — and understanding TORIS in isolation produces an incomplete picture. Researchers should treat it as one link in a procedural chain rather than a standalone instrument. Second, the writ reflects the foundational common law principle that an executor's personal liability for estate debts is secondary and conditional, arising only after estate assets are exhausted or wasted. This principle persists in modern estate law even where the writ form has been abolished or superseded by statute. Third, in American jurisdictions, the old forms of execution writs were largely replaced by statutory probate procedures in the nineteenth century. References to TORIS in American legal materials are therefore often backward-looking citations to English practice or treatises, not to live procedural law. Researchers working in American probate history should distinguish between jurisdictions that formally adopted English writ practice and those that early enacted their own execution regimes.
Historical Dictionary Support
Black's Law Dictionary is the primary historical dictionary source for this term, and its entry is brief but technically precise. The entry identifies the two-stage execution structure accurately: TORIS first against estate goods, followed, upon failure and a finding of devastavit, by fieri facias de bonis propriis against the executor personally. The attribution to Sweet (referring to George Sweet's law dictionary and related English legal reference works) situates the term firmly in English practice.
Historical legal dictionaries generally treat TORIS as a term of art within the narrow writ-based procedural system of English common law and offer no substantial elaboration beyond its mechanical function. What the historical sources do not address is the transition away from writ practice in American jurisdictions, the varying codification of executor liability in state probate statutes, or the modern doctrinal equivalents. Researchers should not infer from silence in the dictionaries that the underlying principle of secondary executor liability has disappeared — it has not — but the writ form itself is largely obsolete.
Jurisdictional Note
TORIS as a formal writ belongs to English common law practice and was inherited by American courts operating under that tradition. American jurisdictions largely replaced writ-based execution procedures with statutory probate and fiduciary liability frameworks during the nineteenth century. The writ is not in active use in any American jurisdiction today, though the underlying doctrine of executor liability for devastavit remains codified or recognized in most states.