Frazer v. Tunis

| Pa. | Jan 2, 1808

Tilghman C. j.

delivered the opinion of the court.

This case comes before the court on a case stated for their opinion.

John Dunwoody and Charles Dilworth, both deceased, entered into articles of agreement under hand and seal, with Thomas Rustan deceased, by which they covenanted to sell and convey to him a quantity of land at a stipulated price. Rustan paid several sums of money on account of this purchase, but Dun-woody and Dilworth failed in making the conveyance. Ruston brought an action of covenant on the articles of agreement against the administrators oí Dunwoody, which was cubmitted' to referees, who awarded 15467 dolls. 22 cts. to the plaintiff in that action. Dunwoody also entered into other articles of agreement under seal with Matthias Slough and Hunt Downing, for establishing a line of stages between Philadelphia and Lancaster; for a breach of which articles Downing claims a considerable sum from the estate of Dunwoody. That estate is insufficient for the payment of ail the demands against it; and the question, now submitted to the court, is whether the claims under the said agreements are to be considered as debts by specialty, within the meaning of the 14th section of the act of Assembly of 19th April If94, entitled “ An act directing the descent of intestates’ real estates” &c.

The act of Assembly declares that “ all debts owing by eve- “ ry person within this state at the time of his death, shall be “ paid by his executors or administrators so far as they have “ assets, in the manner and order following: 1. Physic, fune- “ ral expenses, and servants’ wages. 2. Rents not exceeding “ one year. 3. Judgments. 4. Recognisances. 5. Bonds and “ specialties; and all other debts shall be paid without regard to “ the quality of the same, except debts due to the Common- “ wealth, the which shall be last paid.”

It is not denied by the plaintiff’s counsel that these articles of agreement are specialties; because they are writings under seal, which is the true definition of a specialty. But they contend that in order to be ranked in the 5th class, it is necessary that they should be debts as well as specialties, which they say they are not, because at the time of the intestate’s death they were only claims for unliquidated damages. There is no doubt but the word debt is frequently understood as a sum of money reduced to a certainty, and distinguished from a claim for uncertain damages; and in this sense it has been taken in the construction of the British statutes authorizing a set-off, where there are mutual debts between plaintiff and defendant. But the question is whether it has not been used in a more extensive sense, and if so, whether it will not best answer the intent of the act of Assembly to construe it in its most enlarged signification.

When the legislature undertook to lay down a rule for the direction of executors and administrators in the payment of assets, it must be supposed that it was their intent to direct them in all cases, and not to leave a number of important claims totally unprovided for. It was well known that demands frequently occur both of the nature of specialty and simple contract, which are not debts in the sense contended for by the plaintiff’s counsel; and yet there is no description of claim in the act, other than a debt. It must likewise be supposed that the legislature turned their attention towards those books and those courts in England, which treat and take cognisance of the payment of debts due from deceased persons. The order of payment of those debts is not directed by statute, but probably derived from the civil law, and adopted by the ecclesiastical courts. The cases cited by Mr. Rawle from Godolph. Orpin leg. part 2. ch. 28. sec. 7. 1 P. Wms. 130. Benson v. Benson, and Finer title Executor 2. 0. pi. 39. prove incontestably that a claim for unliquidated damages, founded on a specialty, ranks equally with a debt on bond. The only answer attempted to be given to these cases is, that our act of Assembly speaks only of debts by specialty, but the ecclesiastical law of England regards only the instrument by which the demand is created, whether such demand be of the nature of debt or damages. This answer does not meet the difficulty. The order of payment of debts in England is not regulated by statute; the point to be inquired of therefore is, whether approved writers on the ecclesiastical law do not speak of this kind of claim as a debt. The words of Godolphin, which have been adopted by subsequent authors, are between a debt by obligation, and a debt for damages upon a “ covenant broken, there is no priority.” If we are to have recourse to the origin, (the latin word debitum, a thing that is due or owing) I see no reason why a compensation for breach of contract may not be due¡ although not reduced to a certain sum. But it is needless to examine whether this - extensive meaning is so strictly proper as that in which it is generally taken in the common law. It appears sufficiently, that the legislature had authority for using the word in that enlarged sense, which manifestly best answers their intent; for, to construe it otherwise, would leave a numerous class of creditors unprovided for, and consequently postponed without reason to all others. It was suggested though not much urged by Mr. Lewis, that claims of this kind may be included in the general description of all other debts, which are directed to be paid without regard to their quality. The expressions without regard to quality do at first view seem to give some little colour to this construction; but it is to be remarked in the first place, that this is in direct contradiction to the whole scope of the plaintiff’s argument, which is founded on the position that a claim for damages is not a debt. Then as to the words “ without regard to quality,” there is no difficulty in perceiving why they were introduced: the five first classes comprehend all kinds of debts, but those by simple contract. Debts by simple contract are of various qualities: verbal contracts, notes of hand, bills of exchange &c. The act of 170S gave protested bills of exchange a preference to almost all other debts of the nature of simple contract. The act now under consideration repeals the act of 1705; and the object of the words, without regard to quality, was to place all simple contract debts on the same footing.

Upon the whole then it appears that the 14th section of the act in question is capable of two constructions, without doing violence to its expressions. The court have no hesitation in saying that it is most consistent with good policy, with justice, and with the intent of the legislature, to consider all claims founded on contracts of the nature of specialty as debts by specialty. It follows that the claims of Ruston and Downing, mentioned in the case stated, are debts by specialty.