Ansley v. Baker

Hemphill, Ch. J. The question in this cause, is, whether an heir, who takes the estate into possession, is liable for its debts, before administration; for there is no question, that after administration and partition, he may be held liable to the extent of his distributive share, for debts not barred by limitation. (Hart. Dig. Art. 1197.) Under the laws of Spain, [611] his acceptance of the estate would have created a liability for the debts; and under the Common Law, his intermeddling with the personal goods, would make him liable as executor de son tort. This liability would not be incurred by acts which might be attributable to mere kindness and charity, but would arise upon acts characteristic of the office of an executor, and which might be regarded as indicia that the person interfering was the representative of the deceased. (1 Williams on Ex’ors. p. 210, 215.) Can there exist, under our Statute, any such officer as the Common Law Executor in his own wrong, or any such liability as that incurred by him, especially in a case where the person, sought to be charged, is an heir of the estate ? It will be perceived, at a glance, that there are essential distinctions between an estate at Common Law and that under the Statute, between the modes of administration, respectively, and the offices of executor and administrator. As to administration, (unless an estate be brought by creditor’s bill into Equity,) the mode adopted at Common Law, for the collection of debts, is very diverse from that prescribed by our Statute. Judgments, whether recovered against the deceased in his lifetime, or against his representative after his death, can be enforced against his estate by execution ; the prompt creditor getting the benefit of his diligence; the first judgment, though rendered after the death of the deceased, having priority over those subsequent—the class of debts being the same—and perhaps absorbing the whole estate. All these debts are suable in the District Court, without any reference to a Probate Court. The lawful executor and the executor in his own wrong are sued in the same tribunals, and judgment against them is enforced in the same mode, viz: by execution against the goods of the testator, though an executor de son tort would be liable out of his own goods, if in his hands there were not sufficient of the testator. But by our Statute, suits cannot be prosecuted on an ordinary claim for money in the District Court, against an administrator, unless on a previous rejection of the claim by [612] the administrator or Chief Justice ; and judgments, when rendered, cannot be enforced by execution, but must be certified to the County Court, to be paid in the due course of administration. Now, a judgment against a defendant as executor de son tort, could not be thus certified, the County Court knowing -nothing of executors by construction, and the judgment must be enforced, if at all, by execution, which is a mode repugnant -¿to that specified in the law regulating the estates of deceased persons, and by which the estate might he sacrificed, to the prejudice of other creditors, and of the distributees. The Statute vests very ample jurisdiction in the County Court, over the estates of deceased persons, especially in relation to debts, and subsequent partition. The intention was, obviously, to form a complete system ; to provide for all contingencies ; to adjust a mode of settlement sufficiently comprehensive to embrace all estates, with capacities to extend justice to all who would apply, under its provisions; to have all the debts and assets before the County Court, that none might suffer, who were entitled under the law, and, at the same time, to form a system so intelligible to a common understanding, as to be susceptible of administration by men of plain common sense, although they might be new in their offices, being liable to be changed at every biennial election. To introduce an executor de son tort, with his rights and liabilities, would mar the intended symetry, and increase the perplexity of the system. To permit the estate to be charged and its assets applied in another mode and by a different tribunal, from that prescribed by law, would be at war with the policy of the Statute, and would produce discord and confusion where harmony might and should exist. It will be observed that there is no ground alleged, in this case, sufficient in law to require a departure from the ordinary mode of enforcing claims against an estate by administration. It is not averred that the plaintiff was impeded or prevented from administering, or from pursuing his ordinary remedy. No [613] doubt there might be cases, in which the possessor of the property of an estate might be held responsible for its debts, to the extent, at least, of the assets in his hands ; but this could only be, where he was otherwise remediless, without default in himself. But, apart from these " considerations, it is extremely doubtful, whether the mere fact of taking possession of an estate, by an heir, would, under our Statute, be permitted to convert him into an executor de son tort, and subject him to liabilities as such. The Statute declares, in effect, that the estate shall, immediately on the death, vest in the heirs, testate or intestate, as the case may be. To take possession of property vested by operation of law, cannot be unlawful, nor can it create liabilities not specially attached to the act by law. At Common Law, the estate in the personal goods was in abeyance until the grant of administration, but by the Statute, the whole estate vests immediately in the heirs, subject to the payment of debts, as declared by Statute. But it is not provided that the heirs, as such, can be compelled to discharge those debts • nor are they authorized to employ the estate for such purpose, the Statute, in the same connection declaring that the administrator shall have a right to the possession of the estate, as it existed at the death of the deceased, though if debts were fairly paid, allowance would no doubt be made for such payments. (Hart. Dig. Art. 1221.) Possession, then by an heir, does not subject him to liability. He holds the property, with the incumbrance, but he cannot be required to relieve the estate of the burthen. What further provision, if any, may be necessary to quicken the diligence of an heir, who is holding and enjoying the property, without taking any steps to discharge the liabilities, it is not the province of this Court to suggest. In a case such as this, where the husband is enjoying the estate of a deceased wife, subject to a triflng liability, he should either administer or pay .the debt, or request some one to administer in his stead. A stranger, of any delicacy of feeling, would hesitate long before he would take the step of administration, and the defendant, in such cases, should not be permitted to [614] take advantage of the good feelings of his creditors, to his own •profit and their loss. But such amendments as may be necessary are left to the wisdom of the Legislature. Under the law, as it now exists, we see no legal ground why the plaintiff did not pursue the ordinary remedy by administration, and consequently he is not entitled to the relief in the •mode sought in his petition. Judgment affirmed.