70 P. 507 | Or. | 1902
delivered the opinion of ihe court.
This is an appeal from- a decree of the circuit court for Benton County disallowing certain items in the final account of the appellant as executor of the last will and testament of Peter W. Mason and Hannah R. Mason, his wife, deceased, and charging him with the amount of a promissory note executed and delivered by him to Peter "W. Mason in his lifetime. Akin was insolvent at the time of his appointment as executor, and has ever since continued in that condition, and wholly unable to pay the note, or any part thereof. The respondents, who are creditors of the estate, contended, and the circuit court held, that, -notwithstanding Akin’s insolvency, he should be charged in the settlement of his final account With the amount of such note and interest as so much money in his hands. The soundness of this view was the only question argued by appellant’s counsel, and is the only one presented for our determination on this appeal. Without further Statement of the facts, we shall proceed to its consideration.
• It may be stated generally that at common law the appointment by a testator of his debtor as executor operated as a release or extinguishment of the debt, except] as to creditors, because his appointment to the office suspends the action for the debt, and a personal right once thus voluntarily surrendered is forever gone: 2 Williams, Executors, 625, 626; 2 Woerner, Am. Law Adm’n (2 ed.), § 311. In some states of this country, however, the equitable rule that the appointment of a debtor as executor does not release the debt has been adopted, and, in the absence of a statute, the doctrine is promulgated that debts due a decedent’s estate fijom the executor or administrator are to be deemed and accounted for by him as so much money in his hands, for the reason, as said by the Supreme Court of Massachusetts, in 1814, in ‘Stevens v. Gaylord, 11 Mass. 256, where the rule was first announced: “As soon as the debtor is appointed administrator, if he acknowl
For the purpose of setting the question at rest, the effect of the appointment by a creditor of his debtor as executor, together with the liability of the executor for a debt due from him to the estate, has been regulated by statute in a majority of the states. The statutes of some declare that the appointment shall not operate to extinguish the debt, “but it shall be assets” in the executor’s hands. Under such a provision, the general holding is that a debt due from an executor is placed on the same footing with debts due the estate from other sources, and he and his sureties are only required to account for the actual value thereof: 2 Woerner, Am. Law Adm’n (2 ed.), § 311. Such are the cases of McCarty v. Frazer, 62 Mo. 263, and State ex rel. v. Gregory, 119 Ind. 503 (22 N. E. 1), cited by appellant. Other statutes not only provide that the debt shall not be extinguished, but that the executor shall
The Supreme Court of Ohio, in speaking on the same subject, says: “The language includes all executors indebted to their testator, imposes the same duties upon all alike, and applies the same rule to all, without distinction between those that are solvent and those that are insolvent, or on account of any circumstances or condition whatever. If such distinction or any distinction had been intended, it could easily have been made, and would have readily occurred to the legislative body, especially in view of the previous decisions of the court establishing the same rule declared by the statute. The failure to make the distinction suggested would therefore seem to have been intentional, but, if it were not, the courts cannot supply the omission without a manifest encroachment upon the province of the legislative body”: McGaughey v. Jacoby, 54 Ohio St. 487 (44 N. E. 231). And the Maryland Supreme Court says (Lambrecht v. State, to use, 57 Md. 240): “It was the manifest intention of the act of 1798 to charge the executor absolutely with the debt which he might owe the testator, as assets in his hands; and, in order to remove all danger of misconstruction, it was provided that in case of his failure to account for the sum due, in the same manner as if it were so much money in his hands, his bond may be put in suit. * * The legislature did not intend to open the door to the inquiry whether the. executor has the means and ability to pay his debt, but by express words declares that in all cases his debt shall
Every reason for this doctrine is strengthened when liability on the ground of the executor’s insolvency Is sought to be evaded. That is a matter which the beneficiaries of the estate are entitled, under every principle of right and justice, to have determined by the ordinary processes of the law in a proceeding where the debtor does not occupy the conflicting relations of a representative of the estate charged with the duty of diligence in its behalf, and a debtor whose interest it would be to avoid payment. An inquiry of that nature in the county court, sitting for the transaction of probate business, would neces!sarily be attended with innumerable difficulties, and would be an unsatisfactory and imperfect substitute for the remedies ordinarily afforded for the collection of debts. For the purpose of settling all these questions, and obviating the difficulties suggested, the statute has provided, in plain and unmistakable terms, that, if the debtor takes upon himself the administra
Whether the debt of an insolvent executor, converted by the statute into money, for the purpose of administration, stands on the same footing in regard to his sureties as if the executor had actually received so much money belonging to the estate, is a question not presented nor decided by this appeal. We are of the opinion that the executor was properly charged with the amount of the debt due from him to the estate, as so much money, and, as that is the only question for decision, the decree of the court below is affirmed. ' Affirmed.
