Burd's Executors v. M'Gregor's Administrator

The opinion of the court was delivered May 18, 1857, by Lewis, J. — On the 16th of May, 1821, Joseph Burd and William Bard, administrators of John M£Grregor, deceased, settled their account in the Orphans’ Court, and on the 26th May, 1821, that court confirmed their account, finding the sum of $6986.37 in their hands, which was ordered to be distributed according to law. On the 18th October, 1832, a transcript of this balance was filed in the Common Pleas of Cumberland county. On the 2d September, 1852, a scire facias issued at the suit of William M. Penrose, administrator of Rose M£Gregor, claiming one-third of the sum in the hands of Burd and Bard. This is the action which has been tried in the court below, and which is now here for review. The scire facias issued against the respective personal representatives of Burd and Bard. Judgment by default was entered against Thomas Carlisle, the administrator of William Bard, and the jury was sworn to try the issues, between the plaintiff below and the executors of Joseph Burd. It is material to a proper understanding of the questions involved, to bear in mind, that the pleas [364] are : 1st. Nil debet. 2d. Actio non accrevit, infra sex annos. 3d. That the defendants held no land, bound by the lien of the said transcript. 4th. That they had fully administered the estate of their testator. 5th. Payment; and payment with leave to give the special matter in evidence. 6th. That more than seven years have elapsed since the decree of the 16th May, 1821, without legal claim having been made by the relations of the decedent; that Joseph Burd died before the first of April, 1834, and that his executors settled their administration account, on 31st August, 1841, and distributed the balance to the persons entitled under the will of Joseph Burd, deceased. 7th. That no legal claim was made, for the plaintiff’s share of the estate of John M£Gregor, within seven years after his decease. Neither of these pleas raises any issue, in regard to the de.ath of Joseph Burd before that of William Bard. The legal effect of such a fact was, therefore, immaterial to the trial of the issues. The defendants had no right to demand instructions upon it, and, if given against them, they have no right to complain that they were erroneous in principle. It is sufficient here, that the court did not permit them to gain any advantage before the jury, by raising a point of law, not involved in the issues joined. It is, therefore, unnecessary to say, whether the survivorship of Joseph Burd ought to have been pleaded in abatement or in bar. It certainly ought to have been pleaded in some form, in order that the plaintiff might reply the insolvency of William Bard. If we were to found our judgment on the evidence, we should be of opinion that William Bard was insolvent, and also that he died before Joseph Burd. But as the question was not legitimately raised before the jury, the evidence on the subject is immaterial. If it was admitted on the scire facias, that Joseph Burd died first, the effect of the survivorship of William Bard, might, perhaps, have been raised by demurrer, motion in arrest of judgment, or on writ of error. But as the record stands, the question is not before us. The balance in the hands of Joseph Burd and William Bard, was settled by a judicial decree of the Orphans’ Court. That decree is conclusive of the sum due to the proper distributees of John M:Gregor. It was a debt of the accountants, for which their real and personal estates were liable. The removal of a transcript of this decree to the Common Pleas, did not change its character. It was still a debt for which they were personally bound. It is true that the Act of Assembly, authorizing the filing of the transcript, declared that it should be a lien on the real estate of the accountants; but it is also true, that the same act authorizes the recovery of the claim, by action of debt, or scire facias on the transcript. In such an action, the judgment is not de terris, but general, like any ordinary judgment on a personal' liability. The plea, [365] that the defendants held no lands bound by the lien of the transcript, is, therefore, immaterial. The action, as we have seen, is in the nature of an action of debt on a judicial decree, and not an action of debt grounded on any lending, or contract without specialty. It is, therefore, not within the meaning of the Statute of Limitations, of May 27, 1713. 13 S. & R. 399; 6 Watts, 379. But it is urged, that the Act of Assembly, which bars distributees, who neglect to lay legal claim to “their respective shares,” within seven years after the decease of the intestate, is a bar to the present action. Its terms show very distinctly, that it operates upon distributees only, and not upon creditors; and the construction heretofore given to that statute, is, that it was not intended to enable an administrator to keep the money of the estate in his own pocket. It was passed for the purpose of protecting him from being compelled to pay the money a second time, after he had distributed it by mistake to persons not entitled, or had given to some distributees more than their respective shares, to the exclusion of others, who would have been entitled, had they presented their claims in due time. As against Burd and Bard, the statute would have barred the plaintiffs as distributees, if they had made any distribution, however erroneous. But they made none. We are to take it, that they died with the money in their pockets, or after converting it to their own use. As against their estates, in the hands of their administrators, Rose M'Gregor’s administrator is a creditor. He must, on a deficiency of assets, come in pro rata with other creditors. He is entitled, however, like every other creditor, to a preference over legatees, heirs, or distributees of the estates of Burd and Bard. The payment of the assets of Joseph Burd’s estate, to the legatees under his will, after full notice of the claim of Rose M'Gregor’s administrator as a creditor, is no bar to that claim. The limitation of seven years, has no application to such a claim. According to the construction given to the several Acts of Assembly, relative to estates of decedents, a judgment in a common law action, against an administrator or executor, is only a judgment against the estate of the decedent. It does not bind the executor or administrator personally, although he may have omitted to plead that he had fully administered. Such a plea, if put in, is now never tried in a common law action. The Orphans’ Court has exclusive jurisdiction over it. The plea of nil dehet, cannot be received to invalidate the decree of the Orphans’ Court. That decree conclusively ascertains the balance in the hands of Joseph Burd and William Bard, subject to distribution among the next of kin of John M'Gregor, deceased. The plea merely puts in issue the claim [366] of Rose M‘Gregor, as one of the persons entitled. Under the issue joined on it, proof of her title, as next of kin, may be given on the one side, and evidence of payments on the other. That plea, and the plea of payment, have been disposed of by the jury, and there is no legal ground for disturbing their verdict on these issues. It is alleged, that there is error in admitting Charles B. Pen-rose as a witness for the plaintiff below. The objection is founded on the assumption, that he had been guilty of negligence in collecting the claim. If such negligence existed, the cause of action founded upon it, must have been complete on the expiration of seven years from the filing of the transcript in 1832. An ordinary action at law would, therefore, be barred in 1845. But there is no presumption of negligence in the case. Where the parties interested make no complaint, the presumption is, that the delay was for a purpose beneficial to them; and strangers, or debtors, who desire to raise up such an objection, for the purpose of defeating the claims of the parties interested, must be prepared to establish the existence of such negligence, as will make the witness incompetent. But the decree of the Orphans’ Court, confirming the final account of Mr. Penrose, as administrator, and discharging him from the trust, puts an end to all claim against him, on account of failing to collect this demand. There has, it is true, been great reluctance, on the part of the courts of common law, in giving full effect to the decrees of the Orphans’ Court. But the jurisdiction of that court, and the conclusiveness of its decrees, in the settlement of administration accounts, has been constantly maintained by the legislature, by repeated enactments. It is time that this unprofitable struggle should cease. A feeble attempt is made, to bring Mr. Penrose within the rule, which excludes an assignor of a chose in action, from being a witness to support his claim. But the discharge of one administrator, and the appointment of another, is nothing like an assignment. The discharged administrator has nothing to do with the appointment of his successor in the trust. He makes no transfer of the claims of the decedent. He receives no value for them. He has not necessarily any interest in them. He is, therefore, a competent witness to support them. On the whole, we see no error in the proceedings below. Judgment affirmed.