Judge of Probate v. Brooks

By the court, We .have no doubt, that the statute of the 3 and 4 W. & M. chap. 14, was adopted in this state. Our own statutes refer to the remedy, it provides. But we are of opinion, that devisees, like heirs, are liable only in. cases, where no remedy can be had against the executor or administrator. The reasons, why heirs are held to be liable only in such cases, are stated in Hutchinson v. Stiles, 3 N. H. Rep. 404, and the same reasons exist in the case of devisees. The question then, is, whether the creditors of Evans, [89] for whose benefit this suit is prosecuted, could, at any time, since the decree of distribution was made in the ease of that estate on the 7th June, 1826, have sustained a suit against the executor of Brooks upon this bond, and thus have enforced the payment of the sum they are entitled to receive of Dwight under that decree ? Until that decree was made and Dwight neglected to obey it, the claims against the estate of Brooks, which this suit is brought to recover, did not exist. Until that time it depended upon a contingency that might never happen,whether the estate of Brooks would ever be liable upon this bond for those claims. It remained in contingency, whether any decree of distribution would ever be made, and if made, whether Dwight would obey it or not. And when that decree of distribution was made, the estate of Evans had been settled in the insolvent course, and all the proceedings closed. The effect of a settlement of an estate in that course is declared by the statute of July 2, 1822, entitled an act “ regulating the settlement and distribution of insolvent estates,” in language that cannot be misunderstood. The language of the seventh section is, “ that all demands against such estate exhibited to the commissioners and rejected by them and not prosecuted to judgment in the manner by this act prescribed, and all demands against such estate, which by virtue of this act might have been exhibited to, and allowed by, them, but which were not so exhibited and allowed, shall be forever barred. And no action against any executor or administrator of any such estate shall ever be sustained otherwise than in this act is provided. And if any action be commenced against the executor or administrator of such estate, it shall be discontinued, whan the estate is represented insolvent. Provided, however, that nothing herein contained shall be construed to impair any remedy of a creditor against the heirs or devis-ees of any such estate, whose demand could not be al [90] lowed by the commissioners, because the same depended upon a contingency, which had not happened before or during the time allowed to the creditors to prove their demands,” Nothing can be clearer than this language. No suit can he maintained against an executor or administrator of an insolvent estate, except by way of appeal from the determination of the commissioners. And it is apparent from the language of the statute, that it was the intention of the legislature, that these provisions should apply to all cases of estates administered in the insolvent course, although in some cases the estate might prove not to be in fact insolvent. For if such were not the intention, the proviso saving the remedy against heirs and devisees, is idle and nugatory. In case of actual insolvency, there can be nothing in the hands of heirs or devisees, and there can be no remedy against them. We have examined the eighteenth section of the statute of July 2, 1822, entitled “ an act defining the jurisdiction, powers, and duties of a judge of probate, and the duties, exemptions and liabilities of executors, administrators and guardians in certain cases, in order to ascertain if that does not give a remedy against the executor in this case, at least, to the extent of the assetts in his hands. It is provided in that section, that no action shall be brought against an executor or administrator within a year after the original grant of administration nor be sustained unless the demand was exhibited to the executor. “ And no such action shall ever he sustained, unless the demand, whether payable or not, was exhibited within two years from the original grant of administration to the executor or administrator, acting as such at the time of the exhibition, but every remedy for the recovery thereof against any executor or administrator shall be barred — provided, that if the demand depended upon a contingency which might never have happened, but which shall have happened after the said two years, and the creditor shall exhibit the same before [91] the final settlement and distribution of the estate, the ex-eeutor or administrator shall be liable therefor, as in other cases of estates nbt represented insolvent, but only to the extent of estates under his control, and which shall remain after the discharge of the other demands with which the estate stands charged.” After a most attentive consideration of these provisions, we are satisfied, that they were not intended to apply in cases of estates administered in the insolvent course. In particular, we think the proviso in relation to demands, depending upon a contingency, was not intended to be so applied, because it is expressly provided that the executor or administrator shall be liable in such demands, as in other cases' of estates not represented insolvent. We are therefore of opinion, that the plaintiff is entitled to judgment.