18 Conn. 110 | Conn. | 1846
1. Daniel Tolies, one of the plaintiffs, was called as a witness, by the defendants. To his admission an objection was made on the part of the plaintiffs — not upon the ground, simply, of his being a party upon the record ; for it has been repeatedly holden, that that is not sufficient. Butler &, al. v. Elliott & al. 15 Conn. R. 187. 205. Woodruff & al. v. Westcott, 12 Conn. R. 134. Cowles & al. v. Whitman & al. 10 Conn. R. 125. But the claim is, that he had an interest in favour of the defendants ; that having received of them the debt, he will be liable to refund to them, if they should be compelled to pay it again. Hence, it is said, he has an interest in defeating a recovery in the present Suit.
The payment was made to Tolies, in his character of administrator, and as such he paid over the moneys received to those entitled to them, under the will of the deceased. There is no evidence that the payment was not made by the defendants, voluntarily, and with a full knowledge of all the facts. The rule is well settled, that moneys paid under such circumstances, cannot be recovered back. East India Company v. Tritton & al. 3 B. & Cress. 280. (10 E. C. L. 79.) Hill v. Green, 4 Pick. 114. Denby v. Moore, 1 B. & Ald. 123. Bulkley v. Stewart, 1 Day, 130.
But it is said, he had an interest, by reason of the bond, which he had given to indemnify the defendants. That bond had been by them given up to him, before he was offered as a witness. And it is not denied, but that the interest created by it, would have been removed, had it been delivered to him
The case before us does not materially differ from the common and familiar one, where a party, during the trial, releases the interest of a witness, for the sole and avowed purpose of rendering him admissible. The release operates to remove the legal objection to his competency, but leaves the degree of credit to be given him, when admitted under such circumstances, to be weighed and considered by the jury. The effect of giving up to the witness the bond in the present case, was the same as delivering to him a release under seal. It rendered him an admissible witness.
2. It was claimed in the court below, that the plaintiffs had no power to sell the note in question. Their duty was to collect the money due upon it, not to transfer the instrument. A decision of this question is only necessary, in case a new trial should be granted. But as the question has been argued by the counsel, we are disposed to express the opinion we have formed.
The statute requires executors and administrators to cause an inventory to be made of the real and personal estate of the deceased, and a list of his credits and chases in action. Stat. 229. tit. 31. s. 12. (ed. 1838.) Hence, it is said, they have not the same power over chases in action, as over other personal property.
The reason for not requiring an inventory to be made of such property, is very obvious — the difficulty of ascertaining their true value. The deceased might have had many unsettled accounts with merchants, mechanics and others, with whom he had dealt. To require the appraisers to go into an examination of these accounts, and determine the true value of each, would be a laborious and expensive task, productive of very little benefit to those interested in the estate. Even in the case of promissory notes and bills of exchange, the instruments themselves would not, in all cases, furnish evidence of their true value. Hence the legislature has deemed it sufficient to make a list of such evidences of debt, without requiring their value to be given by the appraisers.
The rule of law is well established, that the legal title to all
Cases might arise where the exercise of such power would be highly beneficial. Suppose the deceased had left bonds, secured by mortgages, payable at remote periods subsequent to his death. The avails might be needed for the payment of his debts. If no sale of them could be made, the payment of the debts might be unreasonably delayed. Ordinarily, a faithful representative would prefer collecting the debts due the estate, rather than to assign them to others. But we know of no rule of law depriving him of the latter power, if he deems it expedient to exercise it.
3. Again, it is said, that if both the plaintiffs conjointly possessed this power,it could not be exercised by one alone. The rule seems to be settled, beyond controversy, the other way, in the case of executors. One of two or more executors may sell and dispose of the personal assets, as fully as if all joined in the act of transfer. Each possesses a power over the whole funds. Gardiner v, Callender & al. 12 Pick. 376. Bogert v. Hertell, 4 Hill, 492. S. C. 9 Paige, 52.
Such being the rule in relation to executors, why should a different one exist in the case of administrators X They both represent the deceased, and in other respects, possess like power over the assets. It is true, the distinction here claimed was recognized by Lord Hardwicke, in the case of Hudson v. Hudson, 1 Atk. 460. But the reasoning of the Chancellor upon the subject is not very satisfactory, especially when applied to the law of executors as it now exists, particularly in this state. Here, both executors and administrators substantially derive their authority from the same source — the court of probate. The former are designated by the testator — the latter by statute. Both must receive the approbation of the
The title, therefore, of Hinman, the assignee of the note, although derived from one of the administrators, might have been good, were there no other difficulty in the case. But he purchased a chose in action, not negotiable, and therefore acquired no legal title. To enable him to reap the fruits of his purchase, it was necessary to institute an action at law ; and this he could do only in the names of both the plaintiffs.
His authority to use Beecher’s name is implied from the sale made by him. But in what manner has he acquired a right to use the name of Tolies ? That has never been given. Had the latter joined in the sale, or made no objection to it, the assent might be implied. But in the present case, all presumption is removed, by an express dissent.
If Hinman has a right to prosecute the suit in Tolies’s name, against his consent, it must be by virtue of the provisions of a recent statute. Stat. 66. tit. 2. s. 1. (ed. 1838.) That provides, that “ whenever the defendant, in any suit upon a bond, note or other chose in action not negotiable, shall plead or give in evidence the discharge, admission or other act of the plaintiff, or any payment made to him, or any transaction whatsoever between the plaintiff and defendant, it shall be lawful for the plaintiff' to reply or prove, as the case may require, an assignment of such chose in action, and notice thereof given to the defendant; and on the same being made to appear, such discharge, admission, payment or other transaction, shall be no otherwise available in such suit in favour of the defendant, than the same would or ought to be in a court of equity.”
Before Hinman has collected the money due upon the note, Tolies has received it, paid it over to those who are entitled to it under the will, and given the defendants a release. This payment and the release are now set up in bar of the action at law. This defence will be effectual, unless the assignee is protected by the provisions of the statute. For one administrator at law has the same power to receive money due upon a note in favour of the estate and give a discharge, as the other has to sell that note.
In order, therefore, to determine the rights of the litigant
Hinman purchased of one administrator, knowing him to be a bankrupt, against the positive directions of the other. What was his duty under such circumstances ? Obviously, to see that those interested in the estate, were not defrauded by the operation. We admit, that as a general rule, a purchaser from an administrator is not bound to see to the application of the purchase money. Here, however, the party bought under suspicious circumstances, knowing that he was placing it in the power of a bankrupt administrator to commit a fraud. Could he show, that the purchase money had gone for the benefit of the estate, there would be a strong equity in bis favour. But that he has not done.
The other administrator has collected the debt, and paid it to those to whom it rightfully belongs. Were the parties all before a court of chancery, from whom could Hinman recover the debt ? The legatees have nothing more than what is justly due to them. The defendants have paid all they owe, to the person legally authorized to receive it. Tolies has merely done what he was legally authorized to do. He has no money in his hands, belonging to either of the parties; and in discharging the trust confided to him, has violated no engagement that he has made.
To enable Hinman in equity to recover of either of these parties, he must show a superior equity. This he fails to do; and consequently, he fails to show a right to recover in his action at law. Could he show that the moneys he had paid, had been applied for the benefit of the estate, then it would follow, that some one would have received more than his due. As the case now stands, he fails to show, that any party, except Beecher, with whom he dealt, has been benefited, by the parchase money.
A new trial, therefore, must be denied.
In this opinion the other Judges concurred.
New trial not to be granted.