Jones v. Treadwell

Field, C. J. The decision of this case depends upon the construction to be given to Pub. Sts. c. 136, §§ 22, 23. These [432] sections were enacted in the Public Statutes in the form in which they were reported by the commissioners on the revision of the statutes. The first and only statute on the subject before the enactment of the Public Statutes was St. 1879, c. 225. These sections of the Public Statutes, so far as we are aware, have been considered by the court only in Allen v. Edwards, 136 Mass. 138. In the opinion in that case the court say that the sections “ are substantially re-enactments of the St. of 1879, c. 225, §§ 1, 2, although they vary therefrom in some expressions.” St. 1879, c. 225, is entitled “ An Act concerning set-off of debts due from legatees under wills, and from distributees of intestate estates.” Although the body of the act contains the word “ heir,” as well as the words “legatee ” and “distributee,” yet the first section relates to “ the payment of the legacy to such legatee,” or to “ the division and distribution of such estate among the heirs and distributees,” and it provides that the “ debt due to a testator or intestate, or to his estate, from a legatee, heir, or distributee, . . . shall be taken by such legatee towards his legacy, and by such heir and distributee towards his share in the estate of the intestate.” The fourth section is as follows: “ Nothing in this act contained shall prejudice any other remedy that an executor or administrator may have for the recovery of a debt due to the testator or intestate, or his estate, from such heir, legatee, or distributee, or release such legatee, heir, or distributee from the surplus of his indebtedness above the amount of his legacy or distributive share in the estate.” It is manifest, we think, that this statute related only to personal estate, and provided a new remedy for the administrator of an intestate estate or the executor of a will as a means of collecting a debt due to the estate from a legatee, heir, or distributee, by empowering the Probate Court to apply the debt towards the payment of the legacy or of the distributive share of an intestate estate. Allen v. Edwards, ubi supra. The law on this subject before the enactment of this statute is shown by the following cases: Procter v. Newhall, 17 Mass. 81; Ward v. Ward, 15 Pick. 511, 520; Hancock v. Hubbard, 19 Pick. 167; Davis v. Newton, 6 Met. 537; Blackler v. Boott, 114 Mass. 24. The Public Statutes are to be construed as a re-enactment of the statutes in force when they were passed to be enacted, if [433] they reasonably can be. Drew v. Streeter, 137 Mass. 460. Pratt v. Street Commissioners, 139 Mass. 559. Chapter 136 of the Public Statutes is entitled “ Of the payment of debts, legacies, and distributive shares.” Sections 22 and 23 are in that division of the chapter which is entitled “Payment of legacies and distributive shares.” The principal points of difference between St. 1879, c. 225, and these sections, are that the word “ devisee ” has been inserted in the sections in connection with the words “ heir, legatee, or distributee ”; and that, instead of the provision in the St. of 1879, that the debt due to the estate shall be taken towards the payment of the legacy, or towards the share or distributive share of the heir or distributee, without prejudice to any other remedy to recover the surplus of the debt due, it is provided in the Public Statutes that the debt shall be set off against and deducted from the share or claim of the heir, devisee, legatee, or distributee, without prejudice to the liability of such heir, devisee, legatee, or distributee for the excess of his indebtedness over the amount of his share in or claim upon the estate. Undoubtedly the Public Statutes, if considered as a new enactment, would leave it somewhat uncertain whether it was the intention to empower the Probate Court by some proceedings to order the real estate devised or inherited to be sold, and the proceeds of the sale to be applied to the payment of a debt due to the estate from the devisee or 'heir, or to establish a lien on such real estate for the purpose of securing the payment of such a debt. But, if such was the intention, the statutes reasonably should have contained some definite provisions whereby that intention could be carried into effect, and should have prescribed some time within which the proceedings should be instituted. The title to real estate ought not to be left indefinitely subject to the institution of such proceedings. In general, the administrator of an intestate estate has nothing to do with the real estate, unless the sale of it is necessary to pay the debts of the estate and the charges of administration, and the executor of a will has nothing to do with the real estate, unless some power is given him by the will over it, or the sale of it is necessary to pay legacies, debts, and charges of administration. The real estate ordinarily passes directly to the heirs or devisees. Administrators or executors cannot set off against or deduct from a [434] devise or inherited share of real estate a debt due to the estate in the same manner as they can set off against or deduct such a debt from a legacy or distributive share of personal property which they must pay from the estate in their hands. It is a simple matter to empower a probate court to determine the amount of such a debt, and to set it off against or deduct it from a legacy or a distributive share, when suit must be brought by the legatee or distributee for the legacy or share, unless the executor or administrator chooses to pay it. It may happen in the administration of estates that money or other personal property is held by an administrator or executor, for the benefit of heirs as distinguished from distributees, or of devisees as distinguished from legatees, and these sections of the Public Statutes may perhaps be held to include such cases. But we are of opinion that the St. of 1879, c. 225, was enacted with reference only to what was or should become, in the course of administration, personal property or estate in the hands of the administrator or executor, and that the changes of phraseology in the Public Statutes are not sufficient, and were not intended to alter the substance of the law in this respect. The decree of the Probate Court dismissed the petition as to Marcus Beebe, Decius Beebe, Junius Beebe, and James H. Young, and authorized J. Edwin Jones, the administrator of the estate of Samuel Treadwell, one of the petitioners, to sell at public auction the right of Charles Treadwell to redeem his real estate from the sale on execution. The petitioners have appealed from the decree, but Charles Treadwell has not. As we are of opinion that the right of redemption of Charles Treadwell in this real estate cannot lawfully be sold by the administrator of the estate of Samuel Treadwell under the authority of the Probate Court, the decree so far as it orders a sale of the right of redemption of Charles Treadwell must be reversed, and the petition must be dismissed. 8o ordered.