Bigelow v. Administrators of Bigelow

4 Ohio 126 | Ohio | 1829

*By the Court :

The first question made is, whether the appointment of a debtor administrator extinguishes the debt, and eo instanti turns it into assets.

Secondly. If the debt is only Suspended, whether the application for a deed by the administrator to himself, as obligor, and an order granted, destroy the right of action on tho bond.

In this case, it appears that during the lifetime of Oliver and Elihu Bigelow, they entered into articles of agreement, by which Oliver covenanted, upon the payment of a certain sum of money by Elihu, to execute a conveyance for a tract of land therein spoci-, fled. A part of the money was paid in the lifetime of Oliver. Administration on his estate was granted to his brother Elihu.

It is now a well-settled principle that if a creditor make his debtor executor, it is not absolutely an extinguishment of the debt, but remains as assets in his hands. Dorchester v. Webb, Croke Car. 372. It is, however, quasi a release at law, because he can not be sued. 1 Com. Dig. 337. The same rule must apply to administrators who can not sue themselves any more than executors. Both are trustees; the one under the law, the other by the appointment of the testator. In the principal case, a will was discovered and admitted to probate, and the administrator was superseded by the executor. Counsel suppose the debt or duty was only suspended, while the debtor was acting as administrator, and that a right of action immediately accrued to the executor when the bond came into his possession. The law appears to be otherwise. Personal actions once suspended are always suspended. Croke Car. 372. If the bond was once assets, no act of the parties could turn them back to an obligation. Chief Baron Comyn, who is himself said to be an authority, has recognized the principle as a sound one that a personal thing suspended is extinct. 1 Com. Dig. 337. The principle under consideration was decided in Winchop v. Basset et al., 12 Mass. 199, the court says, “ the executor having voluntarily assumed the trust, which prevents any one from suing, and being unable to sue himself, he shall be considered %s having paid the debt, and as holding the amount in his hands as administrator.” By the same case, securities in the bond were considered accountable for such assets. The discovery of a will, and the appointment of an executor, only operate as a repeal of the grant of administration, which did not avoid all mesne acts. A repeal upon citation, although the goods were sold pendente lite, does not render the act void. Croke Eliz. 458; Salk. 38. Consequently the application, on the part of the administrator, to have the contract specifically executed, and the record of proceedings under it, are not rendered void by the discovery of a will and the appointment of an executor, who accepted the trust. Every act of the administrator has the same validity as if he had not been superseded, but had continued to perform his duties until final settlement and distribution of the estate. But the record of the proceedings, upon the petition of the administrator for a deed, is conclusive against the right of recovery in this action. The court had jurisdiction, and have found the payment of the money, which can not be controverted, unless this order or decree is void, and this is not pretended; it, being a solemn judgment of a court of competent jurisdiction, is no longer open for controversy. The decree can not be open for inquiry, whether the obligee made payment or not. The court has already adjudged that, and the record shows it. A judgment of the law is not to be controverted by collateral matters, for they are intended. 6 Cok. 38; 11 Mass. 227; Jackson, ex dem. Goforth, v. Longworth, 4 Ohio, 129. We can notin this collateral way go into an inquiry concerning the propriety or impropriety of extending the equity of the statute to an obligee who is administrator. The-policy of admitting a trustee of the law to make this application, where his personal interest must come in-conflict with his representative duties, would, as an abstract principle, be very questionable; but the decision has been made, and in this action can not be controverted.

The legal maxim, omnia prcesumuntur rite et solemniter esse acta, donee probitur in contrari-urn, applies with force to this as well as to every other record. The court are of opinion that the facts agreed are conclusive against the plaintiff’s right of recovery upon this bond. Circumstances *may-exist which enable the heir or creditor to be relieved against the effect of thip order or decree, by applying to a different jurisdiction.,

Judgment of nonsuit.