Dunbar v. Thomas

Bullard, J., delivered the opinion of the court.. The appellee, as administrator of the estate of Mary Bennett, deceased, having sued out. an order of seizure and sale upon a mortgage given to secure a debt due to the estate, was arrested by an injunction obtained by the debtor and present appellant, founded on the allegations that the estate had been partaken, and the debt in question allotted to several of the heirs ; that he had paid one of them a part of the debt, and two hundred dollars to the.tutor of- another, both of whom had given him time, and did not authorize the order of seizure and sale. He denies the legal right of the plaintiff to sue out the order of seizure. The answer avers, that the defendant in injunction, is administrator of the estate,' and denies that any legal partition has been made. He alleges, that the estate was accepted under benefit of inventory, and that no partition could be made until the settlement of the administrator. He denies the right of the several heirs to receive any part of the debt due by the appellant until after the settlement of the succession. The administrator having exhibited evidence of his appointment, the District Court could not inquire collaterally into the propriety of such an appointment by the Court °f Probates. The only remaining inquiry, therefore, appears to us to be, whether the debt in question belonged to the estate and still formed a part of the assets upon which the plaintiff was to administer, or whether it had been withdrawn from , , . . , , • file mass and partitioned among the heirs. An adminis-right to enforce SebtTduetothe estate he admi-are still in his proceeds3'11' 'of which, when paid, are liable to the debts of tl*lG GSl&tfi The i\ecorcl shows that the appointment of the administra-jor was subsequent to the proceedings had in the Court of Probates, which are styled a partition, and he appears to be in possession of the evidence of the debt,. Indeed, the partition amounts to little more than a calculation of the amount of the share which will be coming to each heir after all collections are made, and the payment of the debts. The notes due by Dunbar are not assigned and delivered to different heirs, but simply an agreement, sanctioned by an order court> that the heirs are to be paid in different proportions a part of their shares out of these notes. It is rather a disposition of the proceeds of the notes after they shall have been received, than an assignment of them. They, there-f0re, still belonged to the estate, liable to the payment in the , f , , , . 1 , , . first place of the debts, and the administrator had, in our • • * ¶ . , opinion, a right to coerce their payment. The judgment against the principal and surety on the injunction bond, appears to us such as the statute authorizes on the dissolution of an injunction. It is, therefore, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.