Holland v. Wheaton

Martin, J., delivered the opinion of the court. The plaintiff claimed the curatorship of the estate of H. Johnson, deceased, and is appellant of a judgment, which grants it to his opponent. He claimed the curatorship, on the ground of his having paid for the deceased’s tomb, and on that of the deceased and himself being Freemasons and members of the same encampment of Knight Templars, to which the deceased was debtor about twelve dollars, for certain arrearages; lastly, on the ground of his having been the first applicant. The appellee grounded his claim on his being a creditor for the amount of a promissory note of the deceased, and one half of the amount of two drafts in a partnership, which had theretofore existed between the deceased and himself, the whole amount having been paid by the latter out of his own private funds. The appellant’s counsel contended, that the curatorship ought to be granted to a creditor of the deceased; that the [448] aPPe^ee’ having purchased the note since the death of the maker, became thereby a creditor of the estate, but not of .the. deceased; and efforts have been made to disprove the claim urged by the appellee, on the amount of the drafts. The applicant for the curatorceSef peí-son^ on theÜCgroínd both membei^of FrTem™onsd.s° °f The payment for the tomb of makes the Ítoíof the “cstatt ed! and does naoi curatorship. '' The. pretensions of the appellant, on the score of the Masonic tie, which is alleged to have existed between him and the deceased, are hardly deserving of a serious consideration. Whether all Masons, or merely those of the same 7 J l°4ge, are indebted in any case, or in what a first dividend °^ fun4s, what is the number of those interested in the present case, are matters which the persons can have but a faint idea of. Neither can we know, whether, before a division can take place, justice may not demand some deduction. If masonry gives no right to the appellant, the payment for the tomb, places him, according to his own argument, among the creditors, not of the deceased, but of the estate, and even ' J tbat hypothesis, the appellee may stand on higher grounds, as subrogated to the rights of the payee of the note* who was a creditor of the deceased. We express no opinion on this, as the point is now under consideration, in a case' of considerable amount in the Western Circuit. The change in the sense of the first application, was properly disregarded. Upon the whole, we do not think the Court of Probates' erred. It is, therefore, ordered, adjudged and decreed, that the judgment be affirmed with costs.