14 Tex. 521 | Tex. | 1855
This suit, by Michael C. Dunn, only heir of John R. Dunn, deceased, is brought to establish a claim against the estate of Philip A. Sublett, deceased, which had been rejected by the defendant, E. B. Sublett, as Ms administrator, and which claim is founded on a tripartite contract between the said John R. Dunn, the said Philip A. Sublett, and Sam Houston, by which the said Sublett and Houston sold and conveyed to the said John R. Dunn, an undivided third of certain land claims described in the agreement, in consideration of which the said John R. Dunn advanced to the said Sublett and Houston, the sum of seventeen hundred and seventy-eight dollars ; and it was further stipulated that the said Sublett and
To each of the instruments, that is, the original contract and the acknowledgment of the last sum advanced, is attached or endorsed an affidavit, by John A. Greer, that the claim is just, and that all offsetts, credits and payments, known to the affiant, have been allowed.
It is alleged that the claim was presented to the administrator and rejected; that the said Sublett and Houston have not paid the said sums of money, or any part of them, though often requested; and judgment is prayed, to operate as an acknowledgment of said claims, and for costs.. The demurrer by defendant was sustained and petition dismissed.
Were these such claims for money as should, under Art. 1156, Hart Dig., have been presented to the administrator ? This is a question of some difficulty. The Section declares that every el aim for money against a testator or intestate shall be presented to the administrator, without discriminating between those due and those not due. Whether the Legislature intended any such distinction is a point upon which there might be, perhaps, some difference of opinion. The terms are euffi
This subject is pretty fully discussed in the case of the United States v. The State Bank of North Carolina, (6 Peters, 29.) The question of the priority of debts due to the Government of the United States, as arising under certain Statutes, was involved ; and a construction was given, that this priority was not restricted to debts whose day of payment was passed, but extended also to such as were payable at a future day. The right of priority, in cases where there was an assignment in favor of creditors, was the special question for decision; but the discussion and illustration assumed a wider range. The phrase “ debts due to the United States” had been used in the Statutes, and a construction was given to the word “ due” as used in such connection. It was said to be sometimes used to
The effect of this decision is, that a debt, owing to the United States, would have priority over other debts of a deceased insolvent, although such debt might not be payable until a future day, on the general principle, that in the settlement of estates, no distinction is made between debts payable now or at a future day, and that debts owing, though not matured, from the deceased, may be said to be due to his creditors.
By the laws of England, and of most of the sister States, a specialty, or debt by bond, has priority over debts by simple contract, and an executor or administrator is bound to pay such debt before a debt by simple contract, although this may be past due, and the bond be not yet due. (2 Williams on Ex’ors, p. 876.) This would doubtless depend on circumstances, and would not be enforced, unless there be a deficiency of assets to satisfy all the debts. (2 Younge & Collier 13, 17.) But if there be two specialties, one due and the other not yet due, the executor must not pay the latter before the former. It appears from these authorities, that debts not due are, by the English law, entitled to consideration in the settlement of estates ; and as there is much reason and sound policy in the rule, and as
Is this such a debt as will certainly become due ? For, if not, its establishment as a claim against the estate would be, if not improper, at least fruitless, as it could not be permitted that the assets should be subtracted from debts which are due, and set apart for those which are contingent and may in fact never become debts.
But this debt has not this character of contingency. It cannot be pretended that there is no obligation to refund, unless the land is actually sold, and that this sale may be deferred indefinitely, at the pleasure of the obligors. This was no uncertain debt against Philip A. Sublett, which could not have been enforced against him in his lifetime. It will be admitted, of course, that if he and his co-obligor had sold the lands, the debt must have been paid out of the first proceeds, otherwise
How this claim may be enforced, I shall not particularly examine, as the right of the co-obligor might be involved in such proceeding's, and as he is not a party, and has not been heard in this suit. The only question here is, whether this is such a claim for money, so certain and fixed in its character, as should be presented to the administrator. And we are of opinion that it is.
As to the objection that the allowance would make the debt payable out of the general assets of the estate, we are of opinion that the judgment would not affect its character in this particular ; it would merely give the claim the force that it would have, if allowed by the administrator and approved by the Chief Justice; and such allowance could extend no further than to admit that it is a claim against the deceased, with such liabilities, general or special, on his estate, as are attached to it by law.
We are of opinion that this claim could not be rejected by the administrator, on the ground that it was not due, or that ■provision had been made for payment out of a particular fund. Nor do we deem it a sufficient ground for rejecting, that the affidavit was made by John A. Greer, without naming himself
Reversed and remanded.