Daniels v. Ellison

3 N.H. 279 | Superior Court of New Hampshire | 1825

By the court.

It is objected, that, admitting John Ellison to have had the right to appoint an appraiser in the extent now under consideration, it does not appear that he was notified to appoint one. If this objection had been well founded in fact, it is very clear, that it must have prevailed. But, we think, it has no foundation in point of fact. The return states, that he refused to appoint an appraiser ; and a refusal, ex vi termini, imports notice ; so that notice is necessarily implied in what is stated in the return ; and, we entertain no doubt, this is sufficient. In the case of Sewall er a. vs. Wallace et a., which is cited 2 N. H. Rep 497, it was decided, that It was not sufficient (o state in the return, that the debtor neglected to choose an appraiser. But that decision was founded upon an exceedingly rigid construction of the statute, and the principle was. pusher! in that case to its utmost extent. We do not, however, intend in this case to call in question the soundness of that decision. That case is clearly distinguishable from this. The word “ refuse” much more emphatically imports notice, than the word •( neglect.'’ It is supposed, that the decision in that case was founded upon an opinion, that the word u neglect,” did not necessarily imply notice. Indeed, it is difficult to conceive on what other ground that decision can be supported. But the word u refuse” necessarily imports notice- ■ -

But it is further objected in this case, that John Ellison, the administrator, was not the person to be cDÜed upon to appoint an appraiser ; because, upon the death of Jlbraham Ellison- his real estate descended and vested in his heirs : and if the estate of the heirs was to be taken to pay a debt of Jlbraham Ellison, the heirs ought to hare been notified to appoint an appraiser. But we think, that this objection cannot prevail. A judgment, recovered against an administrator, may be satisfied by an extent upon land, which has descended from the intestate to his liens. And as the law intrusts the administrator to defend the suit, in which the judgment may he recovered, without notice to the heir ; a fortiure, he shall he intrusted to appoint an appraiser, when the execution is extended upon the land, which the heir has by descent from the ini estate. The uniform practice, it. is believed, has been to notify the executor or administrator in such cases ; and we cannot entertain a doubt, that, it is the correct course. If the administrator misderneans himself in the business, to the injury of the heirs, he may be called to an account ; and, if lie misjudges, (he heirs may have an adequate remedy by redeeming the land.

Verdict set aside, and new trial granted