Atherton v. Flagg

AikeNS J. delivered the opinion of the Court. The sufficiency of the defendants’ first plea in bar, depends wholly upon the existing character of the plaintiff’s demand. For, it is admitted in the argument, as well as implied by the terms of the plea itself, that if the report of the Commissioners, upon which the present suit is brought, possesses the character and attributes of a judgment debt, this plea is insufficient. Its rea character will sufficiently appear, from a consideration of the question presented by the demurrer to the second plea in bar. The defendant’s second plea in bar can be sustained upon no other ground, than that the plaintiff’s cause of action, notwith [66] standing the adjudication of Commissioners thereon, the decree of the Judge of Probate approving the same, the order of payment thereof, and the affirmance of that order by the Supreme Court, still retains its primary character, and is liable to be satisfied in the same manner that it was by the terms of the original contract. The. fallacy of such a principle will he obvious, on a slight recurrence to the provisions of the Probate act of 1797, under which these proceedings were had. The discretionary power of representing anjestate insolvent is lodged solely with the executor or administrator. When he has made his election, it becomes the duty of the Judge of Probate to appoint Commissioners to receive, examine and adjust dll claims of the creditors of such estate. The distinction between an apparent and an absolute insolvency, has never been recognized in this State, nor does it appear to have been contemplated by the act above mentioned. All the provisisris for .subsequent proceedings upon an estate represented insolvent, treat it as absolutely so, whatever may be the result in point of fact. Attachments are thereby dissolved. (Proviso to section 58.) All demands against an estate represented insolvent not exhibited to the Commissioners for allowance within the time limited for that purpose, are forever barred, unless the creditor can find some estate of the deceased not inventoried, or accounted for by the administrator. (Section 83.) All the real and personal estate of a deceased person, of which he died seized in fee simple, when represented insolvent, compose a fund in the hands of the administrator for the payment of the debts, and are to be, by him, reduced to cash for that purpose. The law will not permit any of the estate to be taken from him by legal process; neither can he dispose of any, without a breach of his administration bond, except under the statute, and in pursuance of the orders and decrees of the Probate Court. These are th'e necessary consequences of representing an estate insolvent, under the statute, and are totally inconsistent with the idea that the contracts of the deceased can survive the representation of his insolvency, with a view to their specific execution by his representatives. The administrator, by this representation, empounds the estate, as it were, for the equal benefit of all the [67] creditors, and places it out of Iiis own power, in contemplation of law, to fulfil any contract specifically. The reports of Commissioners of claims, when approved by the Court of Probate, are to be paid in specie, and that too, only upon and by virtue of a decree of the Court of Probate for that purpose; which is tantamount to execution in ordinary cases of judgments at law. Hence the great propriety, and, indeed, we may add, legal necessity of treating them as judgment debts. They have, before, been decided to possess that character. (Bray. R. 41. 1 D. Chip. R. 423 ) They have uniformly, at least for a considerable time, been sued as such, in case of non-payment under the decree. And, being such, no plea founded on the merits of the original contract can avail the party. It has been urged in the argument, by the defendants’ counsel, that a construction of the statute, making debt. solv. in fut. payable in pres, would be unconstitutional. But this is not a proper view of the case. The law regards the obligations and contracts of a deceased person, whose estate is represented insolvent, as impossible to be fulfilled. And, they are, like the debts of a bankrupt, to be ascertained by the Commissioners, at their then present value, with a view to an equitable satisfaction out of the estate so far as it will go. The reason why a construction thus affecting a subsisting contract between party and party, would be unconstitutional, is, that the existing rights of one of the parties would be injured or prejudiced thereby. But in these cases, there are, in the eye of the law, no existing rights to be impaired. The deceased has none; for civil rights do not appertain to the dead. His heirs have none; for the law cannot presume there will be any estate to descend to them: And as for creditors, their rights are secured in the best manner the nature of the case will admit of. The judgment, therefore, is, that the defendants’ two pleas in bar to which the plaintiff has demurred, are insufficient.