Russell v. Hosmer

Bissell, J. The motion of the administrators to enter, and prosecute this action, is resisted on two grounds. 1. That the right of action does not survive to the administrators of Matthew T. Russell. 2. That admitting it to survive, and that they had a right to enter and prosecute; they have waived it, by their neglect. 1. Does the right of action survive? It is not, nor can it be admitted, that the right of action was in Russell. The writing was given to him; and to him, personally, it was made payable. But it is equally apparent, from the condition of the instrument, that the beneficial interest was in the creditors of Thompson Phillips, the bankrupt. Russell, in his character of assignee, had obtained a lien on certain real estate, by the levy of an attachment. This was for the benefit of the creditors of Phillips; and had the judgment been followed up, by the setting off those lands on execution, there can be no doubt, that the equitable title to them, would have been in the creditors of Phillips. They never could have been assets, in the hands of the administrators of Russell, nor made liable for the payment of his individual debts. But Russell discharges the lien, and substitutes, in its place, the security in question. This conclusion is, I think, fairly drawn from a sound construction of the entire contract. This being so, and it being admitted, that the estate of Russell is deeply insolvent, there can be no doubt, that a court of chancery would follow this fund, in the hands of his representatives, and make it available to the only purpose, for which it was intended, viz. to satisfy the debts of Phillips, the bankrupt. Moses & al. v. Murgatroyd & al. 1 Johns. Chan. Rep. 119. This fund, therefore, if recovered, cannot be assets in the hands of the administrators of Russell; nor, of course, subject to the payment of his debts. The administrators would be, as to this property, what their intestate, Russell, was, the trustees of the creditors of Phillips, and liable, in equity, to pay over [234] the same into the hands of his assignees. Still, I think the conclusion, which is attempted to be drawn from these premises, does not follow. It does not follow, that because the money. when recovered will not be assets, therefore the cause of action does not survive to the administrators. The instrument, on which the action is brought, assumes the form, and has all the solemnities of a bond, except the seal; and this defect is supplied by statute. Book 2. p. 61. It is, therefore, to every legal intent and purpose, an instrument under seal. The question is, in whom is the legal title? And this is the only question, which can be agitated in a court of law. That the legal title was in Russell, while living, cannot be doubted. It has not been denied in the argument. If, upon his death, the right of action does not survive to his administrators, it is not easy to see in whom is the right. It surely does not survive to the assignees of Phillips, although the beneficial interest may be in his creditors. I am, therefore, of opinion, that upon the death of Matthew T. Russell, the right to enter and prosecute this action devolved upon his administrators, notwithstanding the money recovered might not be assets in their hands. 2. Have they waived this right, by their neglect? Or perhaps, more properly, ought they to be permitted, under the circumstances of the case, to enter and prosecute this action? This is a question addressed to the discretion of the court: and in order to a sound exercise of that discretion, the facts attending the case are necessarily brought under consideration. These were found, by the superior court, and are briefly as follows. The suit was brought to the October term, 1825, of the county court, and was removed, by appeal, to the superior court. At the August term in 1828, the questions of law, arising in the case, were reserved for the advice of the supreme court of errors. Matthew T. Russell died in October 1828; and on the 20th day of December following, administration on his estate was committed to Mary Russell and Charles H. Russell, both of the city of Middletown. The estate was represented insolvent; commissioners were appointed, in January 1829; and six months were limited, for the exhibition of claims. At the January term, 1829, the death of M. T. Russell was suggested on the record; but no motion was made, by the administrators, to enter and prosecute the action. The motion was made at the August term following; and the entry was allowed, subject to the opinion of this Court. [235] I have already remarked, that this is a question addressed to the discretion of the court. The statute provides, that “when any action shall be pending in any superior or county court, and the plaintiff, before final judgment, shall die, the same shall not abate, if it might originally have been prosecuted, by his executor or administrator; and in such case, the executor or administrator may enter their names in the suit, if they see cause, and prosecute the same.” Stat. 42. tit, 2. s. 27. It can hardly be contended, that the power here given to the administrator, is subject to no limitation. If it were so, he might forbear, for any period, and then enter and prosecute the action, He would be subject to no rule, but his own discretion. Such a construction of the statute is inconsistent with the due administration of justice, and incompatible with the rights of a defendant. At the first term, the administrator may enter, as a matter of right. If he do not choose to exercise the right, his neglect may be considered and treated as a waiver. Whether it shall be so considered, and so treated, is to be decided by the court. It is, perhaps, difficult to lay down any inflexible rule on this subject. Each case must be governed by its own peculiar circumstances. There is, however, a principle, which, in my judgment, ought to govern, and to be inflexibly adhered to: and that is, that the administrator shall enter at the first term, or show good reason for neglecting so to do. Of the sufficiency of such reason the court is to decide, from the facts stated and proved. But the facts must be shown, by the administrator. The court cannot judicially assume them. If, therefore, he be not able to enter, at the first term; or if there be circumstances attending the case, which would render such entry inconvenient; they should appear. On the administrator is the burden of proof. Again: It is, in my view, highly proper, that the court, in the exercise of its discretion, should take into consideration the nature of the plaintiff’s claim. If it rest upon a bare legal right, and, at the same time, be opposed to the plain principles of equity and justice, the party should be held to strict and rigid rules in the enforcement of such right. And, in all cases, the court should see to it, that there be no unnecessary delay. There is no process, by which a defendant can compel the administrator’ to .enter: and he ought not to be subjected to the expense and inconvenience of attending term after term, and [236] all the while in doubt, as to the intention of the administrator,—whether he intend to enter and prosecute, or abandon his claim. The application of these principles to the case in question, is very obvious. The administrators of Matthew T. Russell are here seeking to recover a sum of money, to which they have no equitable title, and which, if recovered, ought not to be assets in their hands. There is no intimation that they are prosecuting this suit at the instance of the assignees or creditors of Thompson Phillips, the only persons in interest. Had the fact been so, it ought to have been suggested on the record, as furnishing a reason, why they should be permitted to enter and prosecute the action. Again: No reason is assigned, why they did not enter, at the first term, after the death of Russell. He died in October. His estate had been represented insolvent, and commissioners appointed, previous to the term of the court in January. The administrators were both residing in the city of Middletown, where the court held its session ; and there were daily opportunities for consultation with their counsel. The questions arising in the case, had been previously reserved, for the advice of the supreme court; and it was apparent, that the omission to enter, at that term, would have the effect to postpone the decision of the case, for one year at least. Was this delay necessary? Was it consistent with the rights of the defendant? I think not: and as the administrators have failed to show any reason for this apparent neglect, I am of opinion, that the present motion ought not to prevail; and would so advise the superior court. Peters and Williams, Js. were of the same opinion. Hosmer, Ch. J., being a party, and Daggett, J. having been of counsel in the cause, gave no opinion. Motion to enter not to be granted.