Bacon v. Fairman

| Conn. | Jun 15, 1826

Daggett, J.

In this case, two questions are presented for consideration.

1. Ought there to be any deduction from the debt secured, by the mortgage of Timothy Shepard to Garry Bacon, for which a foreclosure is sought by the plaintiff? The only reason for a deduction, suggested by the defendant, is, it appears that Shepard, the mortgagor, paid to Daniel Beers, in September, 1821, 400 dollars, and in 1822, the further sum of 246 dollars, 16 cents; which sums were due by Garry Bacon, at his death, to Beers. There was no proof that the testator, Bacon, or the plaintiff, ever requested Shepard to pay either of those debts ; or that there was ever any agreement, that if payment was made, it should be applied to the debt secured by mortgage. It is not averred, that the estate of Bacon is insolvent; nor does it appear, that Shepard, or his representative, has settled his account as executor at the court of probate. Under these circumstances, it is very clear, that there is no ground for any deduction. Shepard, as executor, might have had in his hands assets ; and if so, it was his duty to pay the debts of the testator ; and, on the facts found, it is to be presumed, that such was the case. But what is conclusive, the court of probate alone can adjust the account of the executor, and, on such adjustment, make to him all just and proper allowances. The superior court cannot, either on the principles of law, or any practice, in this collateral manner, take cognizance of such a claim. It is only on an appeal from the decree of the court of probate, that a higher court can examine and decide a question of this kind.

2. Did Bacon, by appointing Shepard an executor of his will, release this debt ? If the affirmative of this question can be maintained, it is extraordinary that no practice in our courts of probate, nor any principle adopted by our higher courts, can be found in its support.

In Toller’s treatise on the law of Executors and Administrators, p. 347. (Am. ed.) the common law on this subject is laid down, and numerous authorities are cited. The appointment, and even nomination, of a debtor, an executor, operates as a release or extinguishment of the debt. In equity, however, such appointment will never operate so as to defeat creditors of their claims; but the executor is accountable for such debt. A con-irary doctrine would be manifestly unreasonable and unjust. In respect to legatees, the appointment of a debtor executor, generally operates a discharge of his debt; for the debt is deemed in the light of a specific legacy, and the executor is considered entitled to retain, in preference to other legatees; yet by the express terms of the will or strong inference, the presumption that the testator so intended, may be rebutted. Indeed, the exceptions to this rule, as it respects legatees, are numerous; and it is only when the testator intended the executor a beneficial interest,-or rather, did not intend that he should act as a mere trustee,-that it is suffered to prevail against either creditors or the next of kin. The rule itself originated in a principle never adopted in this state, viz. that the executor was entitled to the surplus of the personal estate, after payment of debts.

In New-York, this rule is recognized, though with apparent reluctance. Thomas v. Thompson, 2 Johns. Rep. 471. In Massachusetts, it is denied. Stevens, admr. v. Gaylord, 11 Mass. Rep. 256. Winship v. Bass & al. 12 Mass. Rep. 199. And such, it is believed, is the fact, in most of the states in the Union.

But, be the decisions of the courts of other states, or of the courts in Westminster-Hall, as they may, what is the law of Connecticut ? The settlement of testate and intestate estates, and the duties, powers and privileges of executors and administrators, is a fair subject of municipal regulation. It has been so considered from the first settlement of the state. The provisions of the statute are ample and explicit. The executor of a will derives his appointment from the testator; but he acts under the authority of the court of probate, and in obedience to laws made for the regulation of his conduct. To that court he is accountable for all the property of the deceased, to the end that it may be applied, first, in payment of debts, and secondly, to those, who, by the statute, are entitled to it. For his services, he is allowed, by the court of probate, a meet recompense. He is an agent or trustee; and merely such, without any beneficial interest, unless given to him by the will. If the testator intends him an object of his bounty, he must manifest that intention towards him as towards others. If he intends to release a debt due from him, he must so direct; otherwise, he will be considered a debtor. Nor is there any technical difficulty in the way. If the executor will not inventory a debt due from him to the deceased, and account for it, as part of the property of the deceased, he is liable, on his bond, for a breach of duty. If he denies, that the debt is due, either in whole or in part, that question may be raised and decided on the trial on the bond. I feel no disposition to make any innovations upon a system long established, well understood, and productive of no evil.

In this view of the case, I advise, that a decree of the superi- or court be made, on the basis that the whole debt due according to the consideration of the mortgage, be paid within such time as to that court may appear reasonable, or that the right of the mortgagor be foreclosed.

The other Judges were of the same opinion.

Decree advised accordingly.