McIntosh v. Hambleton

Habéis, J. [1.] It has been earnestly argued that the agreement made by the remaindermen under the will of Ilambleton, that the tenant for life might receive and use the property without any restrictions by the executor, and without giving bond for its forthcoming and delivery upon the termination of the life estate, was an assignment of title by remaindermen to such life tenant. We do not so regard this covenant. The tenant for life acquired by it no greater or other estate than that given by the will. [2.] Whilst we recognize as sound law the principle, that an administrator is not liable to account for property of 'an estate lost or destroyed without any fault on his part, he must see to it that he administers the estate according to law, by paying, after the expenses of the administration, the debts due by the estate, before he turns over to the legatees, or heirs, their shares of property. Payment to heirs without having paid the debts, is illegal, contrary to the oath of office of administrator, and is very frequently the cause of trouble, expense and tedious litigation, all of which can easily be avoided by simply obeying the law. [3.] The administrator with the will annexed, * it appears, within the twelve months after his qualification as administrator, paid to the sole heir at law a portion of the estate, retaining, as he supposed, in his possession sufficient negro and other property to pay the debt or claim in this case, of which he had due notice. And now he seeks to escape liability to pay said claim, by a plea of plane adminisiravit, wherein he alleges the negro property had become valueless by the result of the recent civil war. nis liability to pay out of his own estate is the penalty for not conforming to law. Had he paid the creditor of the estate, the loss by the valuelessness of negro property would [100] have fallen on the heir. Having paid the heir what she was not entitled then to receive, the administrator’s redress, if he has any, must he by suit to compel her to refund. If compelled to refund the amount paid irregularly, in this way only the administrator and his securities may be saved harmless. Let the judgment below be affirmed.