Gorton v. Gorton's

Martin, J., delivered the opinion of the court. The dismissal of the appeal is prayed for, on the ground that there is no statement of facts, etc., the clerk having neglected to certify that the testimony was taken down in writing on the trial, at the request of one of the parties, in order to serve as a statement of facts, as provided by the Code of Practice, article 601. It appears to us the appeal ought not to be dismissed, because the clerk has certified that the record contains a transcript of all the proceedings had, and all the evidence adduced on the trial. Code of Practice, 896. The defendant having obtained at chambers an order of seizure and sale, on the procés verbal of the judge of probates, of the sale of his testator’s estate, to which was annexed the note of the plaintiff, with two blank endorsements, paraphed ne varietur by the judge, as given for the price of property purchased at said sale, he obtained an injunction to stay the order of seizure and sale, on the ground that the defendant had not proved, by an authentic act, the endorsement of the note ; so that it did not appear that the plaintiff had acquired the right of the person named, as the original payee in the note. The order of seizure and sale was set aside, the injunction made perpetual, and the defendant appealed. The court, in our opinion, erred. The judge had before him authentic evidence that the plaintiff’s note was given to the defendant with two blank endorsements thereon, for the price of property purchased at the probate sale. The defendant therefore, was, in substance, the immediate payee and owner of the note, as the person to whose order it was made payable, was never intended to have (or actually had) the right of receiving its amount. This person and the other endorser intervened, only as sureties of the maker of the note. The defendant might, if be had not seen proper to resort to an order of seizure and sale, have brought a direct action on the note against the maker, stating that he was entitled to receive its amount, not as endorsee but as owner, having [479] received it from the maker. In such a case as in the present, the verity of the signatures of the persons appearing as endorsers, would be an immaterial circumstance ; for even if they were forgeries, a recovery might be had. The purchaser at a probate sale cannot retainthe amount of his notes in discharge of alega-cy from the decedent to his minor children, on the ground, that he is entitled to receive it for them, and has the usufruct during his marriage with their mother. His debt to the estate is personal, and his claim to the legacy ™ autre The plaintiff has further urged, that the will of the defendant’s teslator, contains a legacy in favor of his minor children under the age of puberty, which he is entitled to receive for them, and of which he has the usufruct during his marriage with their mother ; and accordingly, the testator’s estate being solvent, he ought to be permitted to retain the amount of the note in discharge of the legacy. It appears to us this cannot be allowed. The plaintiff’s debt is a personal one, and his claim to the legacy in autre d'roit, and cognizable only by the Court of Probates. The District Court is without authority to enforce 'the payment of it. Neither does it clearly appear that the plaintiff could support his pretensions even in the Court of Probates. Every individual, and perhaps every estate, is, prima facie, deemed solvent ; yet no executor can, with safety, discharge, at once, a debt of his testator. He must wait until time be given for disí ant creditors to present their claims, in order that it may be established contradictorily with all who present themselves as creditors, that there is really a sufficiency of assets to pay all the debts. Legatees must wait until then, for they are to be paid only out of what remains after the creditors are all satisfied. An executor can disburse no money of the estate, without an order of the Court of Probates. It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed ; and that the injunction be dissolved, and 'the. order of seizure and sale reinstated ; tbe plaintiff and appellee paying costs in both courts.