Lovell v. Field

Hutchinson, Ch. J. The supposed interest of the auditors in this case bears the wrong way to support the objection. The auditors were creditors of the estate, and they have allowed the whole of the plaintiff’s account against the defendants. If this created any interest, it would be an interest to disallow the claim in whole or in part, thereby to leave a larger fund for the payment of their own debts. The defendants might be benefited, but never [221] could bo injured by Ibis interest. The objection, coming from them, cannot prevail. Had the plaintiff’s claim been disallowed in whole, or in part, and he had taken the exception, it would have deserved a different consideration. But nothing appears in the report, but that there is an ample fund to pay all the debts in any event; though the counsel suggest an insolvency of the estate. This, to have any effect, should appear as a fact found. The defendants further object, that they purchased these articles of the plaintiff’s account as administrators, and for the benefit of the estate ; and, therefore, are not liable as individuals, but only as administrators; and let execution come only against the estate of the deceased. No authorities are produced to show, that any other action than this would lie at all. Probably none can be found. The administrators may make contracts in their favor by sales of the property, or renting the real estate; and upon these they may maintain actions in their own names, without ad-ding administrators; or they may declare as administrators, and recover in either of these ways : and the addition in the last case shows their accountability to the estate for the avails of the suit. But the administrators cannot promise to bind the estate in the way now contended for. The promise is their own, and they are personally liable. They may make it on the credit of the estate in their hands ; but whether they have a right to pay out of the same, depends upon its being so beneficial to the estate as to receive the sanction of the Probate Court. The third, and last objection, rests on the point of an agreement of plaintiff to wait for his pay, till the estate should be settled. There is no doubt that an agreement for a future pay-day may be so made, that no action can be maintained for the demand,#till such pay-day has arrived. But the plaintiff contends, that this agreement is void by its describing a pay-day that never can arrive; for, if this claim was to be paid out of the estate, the payment of it must precede a final settlement; and further, that the defendants might never settle, and thus keep off the time of payment. Probably a rational construction of such an agreement would avoid these difficulties. The construction should be, when the estate is so far settled as to render it [222] proper that the administrators should be paying the debts, or have obtained an order of the Probate Court for such payment. If the administrators neglect their duty and seek occasion for delay of payment, the construction should be, that there be a reasonable time for the estate to be so settled, as that the debts can be paid with safety and propriety. Philip C. Tucker, for the defendants. Wooclbridge & Son, for the plaintiff. But a further answer to this objection is very conclusive. The auditors have not reported any such agreement to wait for the pay. They report that one of the defendants testified to such an agreement, but they also report, that the plaintiff as absolutely testified, that there was no such agreement. This was a matter of proof before the auditors, and their report shows, that they did not find the fact proved. It would have been more cdrrect for them to have said nothing about the testimony, or who testified about the fact, unless to present an objection to testimony, which does not appear in this case ; but merely have stated, that the defendants contended for such an agreement, but the same was not proved. It is now urged, that the defendants were not competent witnesses to prove such an agreement. There appears to have been no objection of this kind raised before the auditors, and it is too late to raise it Jn objection to their report. But, if the objection had been raised in season, it must have been overruled, according to the doctrine of the case of Truesdell vs. Stevens, in Aikens’ Rep. The defendant was admissible to show the debt not due when the action was commenced. But the plaintiff’s testimony exactly contradicting that of the defendant who testified, the whole was neutralized. The judgement of the County Court is affirmed.