24 A. 466 | R.I. | 1892
The plaintiff, in the District Court, obtained judgment by default against the defendant, as executrix of the will of Albert A. Pierce, late of Providence. Execution issued, upon which the officer made return, under Pub. Stat. R.I. cap. 189, § 10,1 that he could find no estate whereon to levy the same, and thereupon, pursuant to the same section, he brought this writ ofscire facias, with a suggestion of waste, against said executrix. At the trial in the Court of Common Pleas, the defendant offered to show in evidence that the defendant as executrix had not and never had in her hands and possession, as such executrix, estate with which to satisfy the plaintiff's claim, and that she had fully administered all property and estate that came to her hands. This evidence was ruled out by the court, and the case is now before us on exception to that ruling.
It is well settled that a judgment by default against an executor or administrator is an admission of assets to the amount of the claim in suit, and that to the scire facias, by reason of the conclusiveness of the judgment that he has assets, he is not permitted to plead plene administravit. The reason for this rule is clear. In England, under a system allowing various priorities or preferences in the order of paying debts, if there was no estate applicable to debts of the class sued upon, the executor or administrator was bound to plead this fact in the original suit, both with reference to the judgment which might ensue and also to escape the tacit admission of assets. Without such a plea, the issue would ordinarily *690
be upon the merits of the plaintiff's claim, and the executor failing upon this ground ought to be precluded from presenting another defence. But to allow the defence of pleneadministravit, in scire facias, amounts to giving the executor another trial, upon a defence which might have been presented in the first trial. In this country, outside of a few preferred claims, like expenses of administration, sickness, etc., all creditors share equally; and, if the estate is not sufficient to pay them all, the statutes of the several States provide for representing the estate insolvent, which furnishes to the executor substantially the same protection which he would get under the plea of plene administravit. It is made his duty so to represent the estate in such a case, and his omission to do it is properly taken to be an admission of assets sufficient to pay a debt which he allows to go to suit and judgment. Dickson v.Wilkinson, 3 How. U.S. 57; Newcomb v. Goss, 1 Metc. 333;Coleman v. Hall,
Under the English practice, the defendant might rebut the inference of a devastavit by showing that there were goods of the testator, *691
and that he showed them to the sheriff under the original execution. Leonard v. Simpson, 2 Bing. N.C. 176, 179;Wheatley v. Lane, 1 Williams' Saunders, 216 a, 219 c,
note. In this country, it has been held that insolvency proceedings, after the recovery, may be pleaded. Coleman v.Hall,
Exceptions overruled.
"If the execution shall issue as aforesaid against the estate of the testator or intestate in the hands of the executor or administrator, and the officer charged with the service thereof shall return thereon that he cannot find any such estate whereon to levy such execution, and that the same has not been satisfied by such executor or administrator, a writ of scire facias may be sued out of the office of the clerk of the same court against such executor or administrator, containing a suggestion of waste, which writ, being duly served by the officer to whom it shall be directed, and by him returned, if the executor or administrator make default of appearance, or, coming in, shall not show sufficient cause to the contrary, execution shall be awarded against him and his own proper estate for the sum recovered, with interest due thereon, with costs, and, for want of estate, against the body of such executor or administrator, as for his own proper debt."
