Reiff's Appeal

Rogers, J. — Whenever there is reason to believe that the estate of a deceased person is insufficient to pay his debts, exclusive of such articles as may be by law exempted from levy and sale, upon an execution against a debtor, it is the duty of the administrator or executor to keep a distinct and separate account of all such articles so exempted, and to suffer the same to remain for the use of the widow and children, if residing with the deceased at the time of his death; sect. 4, act of Feb. 24, 1834. Although such articles do not properly constitute part of the inventory, yet the list of the exempt property should be noted by the administrator in his return to the register, for the information and guidance of that officer and the creditors. It may, however, happen, that the insolvency may be unknown, and in such cases he cannot be subjected to any injury, for a subsequent appropriation to the use of the widow and children, proyed it does not exceed the limits prescribed by the act. In this case'no separate account was kept, but the widow was allowed to keep in her possession all the household furniture, &c., belonging to the estate, at its appraised value; but, notwithstanding, the court, in the settlement of the account, has made an ample allowance for the exempt articles, and this is all the administrator can reasonably require. He.has lost nothing, and he cannot complain that he obtains no advantage by neglecting to comply with the directions of the act. But the appeal is taken on another ground. The appellant, the administrator, complains that he is charged with the appraised price of the goods taken by the widow and children, although he offered to prove that they were of much less value. It has been questioned by some whether an administrator is, in strictness, justifiable in permitting 258 the widow to take property at the appraisement, as it is notorious that in a great majority of cases the assets are put at an undervalue. It has been thought that even in that case it should be submitted to the test of a public sale; but from motives of humanity a different practice has been suffered to prevail, that cannot now be disturbed, even if we wrere so disposed. It is held to be valid unless tainted by such collusion and fraud as affects the bona lides of the transaction. But be this as it may, this is the first time it has been doubted that where a widow takes property at the appraisement, (whether the deceased be solvent or insolvent,) the administrator can discharge himself by proof that the property was overvalued. It is obvious that it may lead to much mischief and injustice, if the family, who have enjoyed the property, are permitted to discharge the administrator, and, consequently, themselves, from the payment of the appraised value, on any such pretext. There is danger of collusion and fraud, particularly when the administrator and family, as is usually the case, are closely connected by ties of consanguinity or affinity. The claims of creditors will be little regarded when they conflict with persons so situated. It is the duty of the administrator to charge himself with the appraised value of the goods taken by the widow, because it is a sale by him to her at that price for which he, of course, is answerable to the creditors and personal representatives. There is nothing harsh or unjust in this, as it is the voluntary act of the parties charged. If the administrator pursues the course pointed out by the law, he cannot be injured. If he chooses to deviate from the prescribed rule, for reasons best known to himself, he can excite but little sympathy when the loss, if any, is thrown upon himself.' Decree affirmed.