Opinion
June Term, 1842
J. A. Bayard, for plaintiff.
Gilpin, for defendants.
Questions reserved by the Superior Court, New Castle county, for hearing before all the judges.
An award was made in an amicable action, at the suit of Keziah Robinson against the defendant, Joel Robinson, administrator of Charles Robinson, deceased, on the 18th of May, 1841, and judgment of assets thereon rendered on the 24th of May, 1841. Charles Robinson was, in his lifetime, executor of Valentine Robinson, deceased; and the cause of action in said award was plaintiff's share (as a child and legatee,) of the residue of V. Robinson's estate, as ascertained by the distributive account passed before the register for New Castle county in October, 1832. The defendant had assets in his hands arising from the sale of V. Robinson's real estate by the sheriff, amounting to $722 13; and personal assets amounting to $300. Charles Robinson left other debts to a large amount; among others a debt due to James Goodly, by promissory notes, upon which judgment of assets was confessed by the said Joel Robinson, as administrator, on the 22d of May, 1841, in the Superior Court. The assets were not sufficient to pay Goodly's judgment and other claims of equal degree, and also to pay the aforesaid judgment of the plaintiff, obtained for the award.
The question submitted was, whether the debt due to plaintiff on the distributive account passed before the register was entitled to payment out of the assets of Charles Robinson's estate, in preference to the debt due to Goodly on promissory note, and other claims of equal degree.
The plaintiff's counsel made the following points: — 1st. That the account passed by Charles Robinson, as executor of Valentine Robinson, stating the respective balances due to the legatees of the said Valentine, is the decree of a court of equity for the payment of money within the provisions of the act of assembly entitled "An act concerning the probate of wills, and the administration of the personal estates of deceased persons." 2d. That the balance due on an account passed before the register of wills, to the residuary legatees under a will, is a bond debt of the executor.
"Sec. 12. An executor or administrator shall pay the demands against the estate of the deceased-according to the following order: first, funeral expenses; second, the reasonable bills for nursing and necessaries for the last sickness of the deceased; third, wages of servants and laborers employed in household affairs, or in the cultivation of a farm; but no servant or laborer to be allowed this preference for more than one year's wages; fourth, rent, not exceeding one year's rent; rent growing due may be claimed at the election of the person entitled to it in preference to rent in arrear; fifth, judgments against the deceased and decrees of a court of equity against the deceased for the payment of money; sixth, recognizances and obligations of record for the payment of money; seventh, obligations and contracts under seal; eighth, contracts under hand for the payment of money or delivery of goods, wares or merchandise; ninth, other demands.
If an executor or administrator after the expiration of six months from the granting of letters testamentary or administration, without notice of a demand of a superior order, pay a demand of inferior order, such payment shall be allowed, notwithstanding a demand of superior order, of which he had not notice.
Such notice need not be by action. An executor or administrator shall be deemed to have notice of judgments, decrees, recognizances and mortgages of record in the county wherein the letters are granted, unless there have been a failure to insert such judgments, decrees, recognizances or mortgages in the alphabet of the docket or record wherein the same stand: except judgments and recognizances before a justice of the peace, of which and also of debts of record in another county an executor or administrator shall not be charged with notice, unless actual notice be given."
Mr. Attorney-general Gilpin, for the simple contract creditors. — 1st. In my view the notes are of higher grade in the administration of assets than the balance appearing on the administration account. An account passed by an administrator here, is of the same character as the account passed in England before the ordinary, which only reports certain amounts afterwards to be disbursed by order of a court of equity. The administration account is no more here. The balance upon it is not a judgment or decree, but the subject of an action, and the evidence of claim. It will be said that the register is a judge, and his court a court. Granted. For certain purposes he is a judicial officer; but in reference to this matter he does not act in a judicial capacity, or exercise any judicial function. The executor or administrator files his account, without notice to the heirs or next of kin; it is an ex parte proceeding, altogether. ( Const. Art. 6, Sec. 21.) If this be a decree of a court of equity, where is the power to enforce it. The law never intended that in the settlement of these accounts the register should act as a judge, but as an auditor, to audit and settle the account. The constitution distinguishes between these characters in this officer. ( Sec. 22.) The register is a judge, and sits in a court for certain purposes; when there is a cause to be heard and decided, a case litigated, his court is a court for the trial of causes within his jurisdiction; but for other purposes ( Sec. 21) he acts merely as an accounting officer, to audit accounts ex parte; not so as to establish any right by judicial decision, otherwise it could be enforced by the same authority. Why should the legislature provide a remedy for the recovery of the balance so ascertained by action of assumpsit, if the matter had been already adjudicated? As to the distributive account I do not refer to that, but to the administration accounts. There is no authority for passing distributive accounts by the register, nor any right or obligation arising under them. 2d. Is this balance a debt due by obligation? How? The administrator gives a bond; but this is a suit not upon the bond, but an action of assumpsit to recover the balance appearing on this account. The bond does not admit any thing due to this plaintiff, nor engage to pay her any thing. It is a general obligation of the administrator to perform his duties.
Mr. Bayard, contra. — 1st. No analogy can exist between the settlement of administration accounts in. England and here, nor can any argument be drawn from such comparison; for the settlement of accounts before the register, and their effect, are fixed by our constitution and laws. But if such comparison could be made, there exists no resemblance. The ordinary is no judicial officer; he does not settle the account or audit it. It is filed before him by the administrator; merely as the statement of the party, and he is required by his bond to file it. But in our practice the register does adjudge and decide many things in the settlement of this account: he allows or refuses to allow the items, and judges of the vouchers, and his decision is conclusive, unless appealed from. Now this is judicial action; and by the constitution this officer is a judge. He has authority to decide what is due from the administrator and to whom. It is no answer to this to say that he cannot enforce payment of the amount, except through another proceeding. The question is not one of remedy, but what is the character of the settlement. Is it not the judgment or decree of a court of equity? If it be, it has preference in the order of payment of debts. If the power to enforce payment be the criterion, this would equally exclude the decree of the Orphans' Court on appeal from the register, from the character of a decree or judgment. For this cannot be enforced except by action in a court, of law on the administration bond, or otherwise. Yet would not a sum ascertained by the Orphans' Court have preference in the administration of assets? Is it not a sum due by judgment or decree? The act giving preference does so on the ground that a sum which has been investigated by a court of justice and ascertained by judicial action, is of higher grade than a mere claim not adjudicated, and the reason of this preference applies equally to the decision of the register in settling and passing accounts. Under the constitution of 1792, jurisdiction was given to the Orphans' Court by appeal from the sentence or decree of the register. By the amendment of 1802, the chancellor had appellate jurisdiction from the sentence or decree of the register, settling these accounts. These words would be without meaning if the decision of the register be not a sentence, decree or judgment; and the late constitution is a proper subject of reference in the construction of the amended constitution. The law directing the order of payment of debts by an administrator, prefers "judgments against the deceased, and decrees of a court of equity against the deceased for the payment of money; recognizances and obligations of record for the payment of money," before obligations and contracts under seal, or contracts under hand for the payment of money or delivery of goods, c. ( Digest 225 § 12.) Why should the legislature give a preference to decrees of a court of equity, unless they meant to prefer debts ascertained by the Orphans' Court and register, as well as decrees in chancery. For besides these there can be no judgment which is a decree of a court of equity, and the legislature would have said at once decrees of the chancellor. And without this construction debts ascertained by the decree of the register, or even by the decree of the Orphans' Court on appeal, though fully litigated by both parties, are still of no higher grade in reference to the administration of assets, than a mere hook account or simple contract debt. Within, therefore, both the policy and the language of the act of assembly, and of the constitution, a debt thus ascertained is entitled to preference in the administration of assets, to simple contract debts which have never been submitted to judicial action. 2d. The other point has been made by me more for the purpose of raising the question to have it settled, than because I have formed any decided opinion in its favor. The difficulty I have is, that though this should he regarded as a debt due under the administration bond, that bond is taken in the name of the State, and it would be a debt due to the State; but there is something in the law which looks as if the legislature intended to protect such debts as this, and give them a preference as bond debts.
The judgment of the court was pronounced by judge Harrington.
The constitution makes a manifest distinction between the duties of the register as an accounting officer, and his functions as a judge sitting in the register's court. Section 21 of article 6, regards him as an auditor to examine, adjust and settle administration accounts, and gives an appeal from this settlement to the Orphans' Court, where alone these accounts can be questioned. Section 22 considers him for certain purposes as a judge, and authorizes him to hold a court. It makes provision for the "litigation of causes," and requires depositions to be taken down as a part of the "proceedings in the cause." It contemplates parties litigant and adversary proceedings, neither of which is contemplated or practically observed as to the matters referred to in section 21. From this court the appeal is to the Superior Court.
The settlement of an account under section 21, is not a decree for the payment of money.
It is ex parte. Though it ascertains an amount and binds the administrator until appealed from, it is no decree or judgment for the payment of money. It cannot be enforced without action. Such action cannot be founded upon it, but must be on the administration bond, or in assumpsit on the administrator's general liability, or under the act of assembly which gives the action of assumpsit to the heir; and regards the settled account merely as the evidence of the debt.
If this be a decree for the payment of money, it would merge the action of assumpsit and the action on the bond, and the plea would be nul tiel record, and not non-assumpsit, non est factum, or nil debet.
In the distribution of assets an administrator would have to notice it, if properly alphabeted, without action. This would be a dangerous principle, as well as new. No one looks into the register's office for judgments or decrees. It might possibly deprive the administrator of the power of showing the payment of debts due from the deceased, made after the settlement, though the law says that this shall he a sufficient answer to the demand of the heir.
It would give this mere settled account priority in the distribution of assets over recognizances and obligations of record for the payment of money, as well as obligations and contracts under seal, which the legislature could not have intended.
It cannot be a decree for the payment of money, because it does not ascertain definitely the persons to whom it is payable; and it would be dangerous to permit the register in this ex parte proceeding to try this question, and conclude the rights of the heirs-at-law, or persons entitled to shares of the estate. The constitution does not direct the register to distribute the balance, but only to adjust and settle the accounts. The act of assembly ( Dig. 227,) directing in what manner the residue of personal estates shall be distributed, has reference more to the parties entitled and their rights, than to the duty of the register in ascertaining who these parties are. This view derives force from the condition of the administration bond, which requires the administrator to distribute and pay the residue to the "persons entitled," an obligation which no mistake of the register in passing a distributive account would excuse. If that act authorizes the register to pass distributive accounts, it is safer to consider those accounts as open to correction, as they would be in an adversary suit, than to regard them as definitive decrees, though ex-parte. The passing such accounts is not the settlement or adjustment of an administration account, but something subsequent in which the administrator has no interest, right or duty, and as to which there is no party litigating before the court. This act if it be a decree, must be derived from a constitutional power in the register to make such decree; but it is not an act referred to or authorized by section 21 of the constitution. If there be error in any such distributive account, and it is a decree, there is no means of correcting it. The only appeal given by section 21, is to the Orphans' Court, and the questions to be tried on that appeal have reference only to the administration accounts. "Exceptions may be made by persons concerned to both sides of every such account."
No writ of error would lie apart from the constitution; because such writ lies only where the proceedings are according to the course of the common law; and the register's court, (if in this matter it be a court,) is a summary jurisdiction, compounded of law and fact, which the Court of Errors and Appeals could not try. A certiorari would not lie; and, if it would, it would not be available, for the error would not appear on the face of the record. No writ of error is given by the constitution; and it follows that such a decree could not be corrected in any form.
If it be a decree there is no means of enforcing it, either originally or after appeal to the Orphans' Court, but by action founded directly upon it; which would not open this question as to the rights of other parties entitled to distributive shares, and would be liable to all the objections before stated. Such an action, besides being unprecedented in our courts, would contradict the decision in Davis vs. Rawlins, (ante 346;) for on the settled doctrine of merger, no action of assumpsit can be maintained on the general liability of an administrator, after that liability has been fixed by a judgment or decree; and for the same reason it would prevent any action on the administration bond.
It would change the act of limitation as to the liability of the administrator in respect to such settled accounts, which is six years from the date of his bond; and make him liable to an action founded on the decree for twenty years from the time of passing the accounts.
The law ( Dig. 226,) did not intend to include such a claim as this in the fifth grade as a judgment or decree for the payment of money, for it provides no means of notice to the administrator; and though it requires him to take notice of judgments and decrees, it expressly excuses him for neglecting to notice such, if there has been a failure to insert such judgments, decrees, c., in the alphabet of the record or docket wherein the same stand. There is no law requiring any alphabet or index to be made of the settlement of administration accounts.
On the second question we are of opinion that this may be fairly regarded for the purposes of the distribution of assets, as a debt due by bond or obligation under seal. It is secured by the bond; and the proper remedy for it is by a suit on the bond. The sum is fixed in respect of the administrator by the settlement before the register, if not appealed from, and by the Orphans' Court on appeal; and the condition of the bond obliges the administrator "to pay it to the person or persons respectively entitled to receive the same." It does not matter that this bond is in the name of the State, for the same thing is true of "recognizances and obligations of record for the payment of money," and these are placed by the act in a grade higher than is now assigned to this debt. As a bond debt it is rightfully placed in a rank higher than simple contract debts and other demands; and the placing it in this rank will in no respect embarrass the administration of assets, for the notice to the administrator will be by action. It leaves him as before to look to those claims which have attained the high rank of judgments or decrees where such claims are usually recorded, and in respect to which the law furnishes him with easy access, by requiring correct alphabets to be made, and excuses him from any neglect in noticing such as are not so indexed. ( Dig. 394, 226.)
The chancellor doubted and expressed his doubts as to the second point: he fully agreed as to the first; and was inclined to agree as to the second, on the ground of its equity and justice.
Ordered, that it be certified accordingly.