Duncan v. Watson

| Miss. | Oct 15, 1854

Mr. Justice Handy

delivered the opinion

This case has been here on a former owes in 2 S. & M. 121.

The action was instituted against James Watson, as administrator of Benjamin Blanton, deceased, on a promissory note on which Blanton was indorser, and which fell due after his death. The declaration avers due presentment and non-payment of the note on the day of its maturity, which was after the death of Blanton, and that notice thereof was given to James Watson, the administrator. After the former decision in this court, James Watson settled his final account as administrator with the probate court and was discharged, and after-wards, by consent of parties, the suit was abated , as to him, and the ■ present defendant, who had been appointed administrator de bonis non of the estate, was made a party; and in that condition of the case, the judgment now before us was rendered against the plaintiff, who has taken his writ of error.

On the trial in the court below, the plaintiff, in order to show notice of presentment and non-payment, offered in evidence a letter written by James Watson to Watt, Burke & Co., while-he was administrator, tending to show an admission of the-claim, and also offered to prove by Montgomery, a competent witness, that in March or April, 1837, James Watson, whilst. he was administrator, admitted to him that he had received legal notice of the presentment and non-payment of the note. This evidence was objected to by the defendant, and was not permitted to go to the jury, which constitutes the principal ground of error insisted upon by the plaintiff.

In the former decision of the case by this court, it was held that this same testimony was competent, and that it was improperly excluded on the first trial. But it is now urged, in behalf of the defendant, that although the testimony was admissible in the situation of the ease as it then stood, and while James Watson was a party to the suit, it cannot be admitted against the administrator de bonis non, because there is no privity of interest or estate between the original administrator and the administrator de bonis non, and, therefore, that the admissions of the former cannot bind the latter; and again, because, if such statements were competent, the former administrator, being no longer a party to the suit, should have been produced as a witness, or his deposition taken.

We do not consider these positions to be well founded. It is true that, in many respects, there is no privity between an original administrator and an administrator de bonis non. Thus, the former is not accountable to the latter for his administration of the estate, nor, at common law, could the administrator de bonis non have a scire facias upon a judgment obtained in the name of the administrator. Allen v. Irwin, 1 Serg. & Rawle, 554. But in many respects the acts of the administrator, within the sphere of his duty and power, are obligatory upon his successor, so far as to charge the estate. They bind the administrator de bonis non, because the estate came to his hands ■. charged with them by acts of the administrator which he might , legitimately do in the management of the estate while in his . hands. If this were not so, the admission of the payment of ! a debt due the estate, or the execution of a receipt therefor, íwhich is but another form of admitting payment by the admin-ristrator, Would not bind the estate in the hands of his successor; . and the administrator would be capable of doing no act, however legitimate, to the management of the estate, and in what- . ever good faith done, that could create a liability upon the estate, or continue one already existing. Under this rale, if the intestate, in his lifetime, had contracted to pay a sum of money by a stated time, upon a third person performing a certain act, and the intestate died before the time appointed, and the other party complied with his contract by the day, the admission by the administrator that the other party had complied, would not be sufficient to give him the benefit of the contract against the estate. Such a principle, if carried out, would produce the greatest inconvenience to estates, if it would not make the administration of them impracticable.

We take it to be clear, that an administrator may make admissions which will bind the estate, provided he acts in good faith and with due regard to the best interest of the estate, and in a matter necessarily connected with its administration; and this is especially the case when, as in this instance, the contract, which was incomplete at the death of the intestate, devolves upon the administrator who stood in the place of the intestate when the note became due. It would appear to be manifest, that if he was capable of receiving notice in such-a case, which is not doubted, he would also be capable of admitting that he had received notice, and that the one act would bind the estate as fully as the other. Suppose the administrator had been present when the note was presented for payment, could he not have waived the proof of notice in writing or verbally, and would, not such waiver have bound the estate ? It is clear that it would, because it would be an act properly connected with his trust, and which might well be done to save expense to the estate.

In this case,-the admission relates to a fact which transpired with the administrator himself, as the necessary consequence of the intestate’s death. He stood in the place of the intestate in receiving notice, and therefore had the same power to do any thing in relation to it to make the contract obligatory upon the estate that the intestate would have had.

It follows, from this view, that the evidence was admissible in the suit against the administrator de bonis non, and was improperly rejected. And if this conclusion be correct, there was no necessity for calling the original administrator as a witness. The plaintiff was entitled to the benefit of his admissions as evidence, and though he may have called him as a witness, he was not compelled to do so. But, in addition to this, the record shows that he was dead at the time of the trial, and we do not perceive on what principle the plaintiff was obliged to anticipate the death of a party so situated and take his deposition de bene esse, and, on failure to do so, to lose the benefit of his admissions.

But it is insisted, in behalf of the defendant, that this evidence was immaterial, and that a verdict ought not to have been rendered for the plaintiff if it had been admitted, because there was no sufficient proof of presentment of the note at the time and place of payment, without which the acknowledgment of notice of non-payment was unavailing.

The note was payable, on its face, “ at the Bank of the State of Mississippi.” There was testimony before the jury tending to show that, on the day of the maturity of the note, it was in the hands of the officers of the Agricultural Bank at Natchez, where it had been previously deposited for collection, and that it remained in that bank during the whole of that day, and was unpaid; and further, that at and before that time, the business of the Bank of the State of Mississippi was transacted at and through the Agricultural Bank. We do not intend to decide the question, or express any opinion, whether the testimony proved these facts. That was a matter for the jury to determine ; and we only intend to say, that from the testimony, they might have found that the note was in the Agricultural Bank on the day of its maturity, and that the business of the Bank of Mississippi was transacted at and through that bank. The question was properly submitted to the jury under the fifth instruction given at the instance of the plaintiff, and if the opinion of the jury had been in the affirmative, they would have had the right to find from the evidence that presentment was made; for it is not denied, that if the note remained at the place of business of the Bank of Mississippi during the day of its maturity, that that was a sufficient presentment.

Although the jury, then, might have been satisfied that the point of presentment was in favor of the plaintiff, yet they could not find a verdict in his favor in the absence of proof of notice of the presentment and non-payment. The admissions of Watson upon that point were, therefore, most material to the plaintiff’s recovery, and the exclusion of that part of the evidence operated directly to his prejudice.

The instructions given at the instance of the defendant are objected to by the plaintiff; but, taken in connection with those given at the instance of the plaintiff, we think that the law was properly stated. The first instruction of the defendant, which might have been construed too rigidly in relation to the presentment of the note at the Bank of Mississippi, was properly qualified by the fifth instruction, at the plaintiff’s instance; and the two instructions, taken together, stated the correct rule. So the fourth instruction of the plaintiff was properly qualified by the second, given at the instance of the defendant.

The third instruction in behalf of the defendant is correct, when properly understood. It is, “that in weighing the testimony, the jury cannot find for the plaintiff on the ground of preponderance of evidence, unless the evidence in the case is sufficient to prove the truth of all the facts on which the plaintiff’s right to recover depends.”

In order to prevent misapprehension bn the new trial, this instruction should be qualified in the latter part of it, by adding to it, “to the satisfaction of the jury;” for otherwise, the jury might think that, in weighing the preponderance of evidence, nothing should be taken into consideration but the'facts which were directly and positively proved.

The judgment is reversed, a new trial awarded, and the case-remanded.