Ashley v. Harrington

Chipman, Ch. J. delivered the opinion of the Court. The Probate law was intended by the Legislature, for the just, equitable and expeditious settlement of estates, both solvent and insolvent ; and in all decisions that may affect it, the spiritj intent and end of that system ought to be kept steadily in view. The case now under consideration, is that of a suit pending at the death of the [351] Intestate, and is distinctly provided for in the 73d and 74th Sec-lions of the Judiciary Act; and here we must look .for the rule of decision in this case, unless we find some express provision in the Probate Act, which limits or modifies the provision contained in these sections, in such manner as to exclude from it all actions in the circumstances of the present action. In giving a construction to the revised laws we are not to consider them as prior and subsequent acts, but as intended to form one general system of statute laws. If we consider them in this light, we shall generally find all seeming repugnancies easily reconciled. The 73d Section of the Judiciary Act, in its expressions, clearly embni-.os every action pending at the decease of the party plaintiff or defendant, which by law survives, without regard to the solvency or insolvency of the estate of the deceased. In the 74th Section immeoiutely following, the case of insolvency is contemplated, as requiring a modification of the provision in the preceding Section, and such modification is introduced, clearly with a view to the Probate system. Accordingly the last mentioned Section provides “ That when final judgment shall be recovered as aforesaid, (referring to the provision of the former Section) against an estate represented insolvent, execution shall be stayed until a full and complete settlement shall be made of such estate, in the Probate office; and the party shall take out execution, for no more than his, her or their just pioportion and dividend out of such insolvent estate, agreeably to the settlement of said estate in the Probate office.” Taking these two Sections in connection, there cannot be a doubt, that in an action pending at the decease of the party defendant, the plaintiff, if by law the action survive, is empowered to proceed to final judgment against the executor or administrator, although the estate shall be represented, and finally found insolvent. It is the very case for which provision is made in the latter Section, with a view of adapting it to the provisions of the Probate system ; and such is the effect of the construction of the 86th and 89th Sections of the Probate Act, for which the defendant’s counsel contend. Now it is a sound rule of construction, that all acts and parts of acts, forming one system, shall be so construed, as to give to every part and every provision its intended effect; and where there may be found any conflicting provisions, so far only to restrain either, [352] keeping in view the general intention, as to render the whole consistent. In order to a clear understanding of the 86th Section of the Probate Act, it must be taken in connexion with the 89th Section ; both make but one complete provision on the same subject, rjijjg expression in the 86th Section, “ That no action shall be sustained against an executor or administrator of an insolvent estate, unless in the excepted cases,” is sufficiently broad to comprehend all actions, as well those pending at the time of the decease of the party defendant, as those afterwards commenced against his executor or administrator, if so required to render it consistent with the other provisions of the law. The 89th Section is but a farther provision pointing out the mode in which final effect is to be given to the 86th Section, This is very definite in the expression, it is that all actions brought against any executor or administrator of any estate, which is represented insolvent, shall, when such estate is found insolvent, be discontinued, unless the executor or administrator consent to have a trial.at law, as before directed in this Act.” This clearly does not extend to such actions as are pending at the death of the testate or intestate, and revived against his executor or administrator, but to those actions only, which have been brought or originally commenced against the executor or administrator.— This construction will give effect to every Section of the Judiciary and of the Probate Act, upon this subject. — It will not, as has been urged, produce any inconvenience, or any derangement of the Probate system. Under the provisions of the Probate Act, there may he trials and judgments at law; there may he appeals to this Court from the awards of the commissioners; such awards may, by the Court, be varied, reversed or affirmed, and the final awards and judgments must be returned to the Judge of Probate. So, if in an action like the present, revived against the executor or administrator, the creditor recover final judgment, he roust cause the amount recovered to be certified to the Court of Probate, or he cannot have the effect of that judgment; for the Court are to stay the execution until a settlement of the estate shall be made in the Probate office, and then he is to take execution for no more than his just proportion and dividend of the estate: the Court will not suffer execution to issue until he shall have produced a certificate from the Judge of Probate, of the sum allowed for his dividend, nor will the Judge of Probate allow him a dividend, unless he shall have returned the [353] amount of his judgment to be added to the list of claims against the ■estate; and thus the Probate system is preserved entire. Upon any construction of the Act, however, this is not a good plea, nor is the mode proper, were it decided to be a case coming within the 86ih Section of the Probate Act, and that a plea in bar might be proper in this case; for. the provision, be it what it may, extends to cases only of estates that are found insolvent; but the plea does not suggest that the estate has been found insolvent — it Sfileges only that it has been represented insolvent. Had there been such averment in the plea, still the mode is improper; it is directed that ail actions coming within the 86th Section of the Probate Act, shall, when the estate is found to be insolvent, be discontinued : this must be done on motion to the Court. I do not know of any plea which concludes in discontinuance. In no point of view can the plea be supported. There must, therefore, be Judgment for the plaintiff,