Booth v. Patrick

Daggett, J. In this action, it was essential to the plaintiff’s recovery, to prove, that goods or estate of the deceased “came to the hands, possession or knowledge” of the administrator, Theophilus Patrick, and were not by him inventoried. Our statute, (p. 201. tit. Estates. s. 11.) in which the form of the bond is prescribed, has so provided. This seems also reasonable ; for it would be unjust to subject the administrator to the payment of damages for neglecting to inventory such property as might appear, on an investigation of the title, to have belonged to the deceased, when the administrator had no knowledge of the fact. Had the conveyance of the land alleged to have been the estate of the deceased, been made to Theophilus Patrick, the administrator, and had it been fraudulent, doubtless he could never have been permitted to allege his ignorance. In that case, he would have been liable, and his surety too, for not treating it as the property of the deceased, and rendering it liable for his debts. But the conveyance, alleged to have been fraudulent, was made to Stiles Patrick, the defendant, who was only surety. The surety can be only liable to the extent of the liability of his principal ; and hence the charge was erroneous. It placed the ground of recovery simply on the question, whether the deed from James, the deceased, to Stiles and Polly, was fraudulent. As that was the principal point in discussion, the court omitted in the instruction to the jury, to state what should have been stated, viz. a knowledge in the administrator that the deed was fraudulent. For this reason, the charge was erroneous; and a new trial must, therefore, be granted. The other Judges were of the same opinion, except Bissell, [109] J., who gave no opinion, having been of counsel in the, cause. New trial to be granted.