67 Conn. 448 | Conn. | 1896
The sole plaintiff in the present action is, and is described as, the administrator with the will annexed on the estate of Eli D. Preston, late of Farmington, deceased. The defendants, seven in number, are alleged to claim interest in certain land by virtue of a deed of conveyance made, ■signed and acknowledged, by said Eli D. Preston in his life,
The defendants on the same day, January 9th, 1896, filed a demurrer to the complaint and to the first, second and fourth prayers for relief, and also a motion to expunge certain paragraphs of the complaint as “immaterial and impertinent.” The court, on the same day, January 31st, 1896, granted the motion to strike out, and sustained the demurrer as to the second and fourth claims for relief, and also the demurrer to the entire complaint, on the ground of demurrer —being the second ground — which reads as follows: “ It is not alleged that said property has been inventoried as a part of the estate of Eli D. Preston, deceased, or that the Court
The questions presented by the reasons of appeal relate to the correctness of these several rulings. In granting the motion to strike out, the court evidently regarded the allegations directed to be expunged as statements of evidence, not of ultimate, material or issuable facts. There can be no question as to the correctness of this view so far as most of the averments are concerned. The complaint, however, is so peculiar in its structiire, that in order to decide regarding this ruling as to some of the statements, it seems material to enlarge the consideration to an extent which involves the correctness of the other rulings also. To illustrate: All the allegations in relation to the note and mortgage were striken out. With these absent, the complaint would contain no foundation for the second and fourth prayers for relief, the demurrer to which was sustained. Substantially the same may be said as to the statements regarding the legaeju These also were in effect expunged. If the retention of the allegations concerning either of these, or any other matters, would have made the complaint stronger to resist the final test of the demurrer to it as a whole, which was sustained, they should not have been expunged. If, on the other hand, the complaint as it originally stood was bad upon demurrer, these subordinate rulings were merged in the broader one and became immaterial. We will therefore come directly to the question which may be decisive of the whole matter.
Was the demurrer — treated as one to the entire complaint, with all its original allegations and prayers for relief — properly sustained? In considering this question we must from the outset, and throughout, keep in mind who the plaintiff is and in what capacity he sues, and is entitled alone to relief. We say this, because neither the complaint, nor the ingenious brief and able argument in support of its validity, appears to lead in the direction of such clear conception. Ellice Humiston (or Preston) is not a party to the record. So far as the claimed legacy is concerned, the will — made an exhibit — gave it to the plaintiff in trust, as executor of
Advancing then, from this starting point, the plaintiff claims that the facts alleged show him to be entitled to relief in some of the forms in which relief is demanded, on one or another of these grounds: that is to say, as based either upon the alleged indebtedness of the estate to Ellice Humiston, evidenced by the note and mortgage, or upon the legacy. The court below regarded the complaint as counting upon the indebtedness alone, and the rest as matters averred in explanation and support of such claim. But the plaintiff strongly protests against this view, and we will consider the case as broadly as he himself asserts it.
First, however, let us look at the matter of indebtedness. What appears in the complaint as bearing upon this ? Eli D. Preston died March 16th, 1887. He was then indebted to Ellice Humiston in the sum of $3,000 for work and labor, a simple contract debt. On March 31st, 1887, the will of said Preston was probated. The plaintiff, therein named as executor, declined such appointment. Martin L. Parsons of Farmington was appointed administrator with the will annexed, accepted the appointment, gave bonds, and duly administered a portion of the estate — all, in fact, except the land now in question. On January 21st, 1890, said Parsons settled his administration account with said estate. In said account he charged himself with personal property and credits and choses in action only. The amount was $5,102.84. The credit amounted to precisely the same sum, exactly exhausting the estate. The largest item was, “ By paid claims allowed, $4,014.09.” Ellice Humiston presented no claim whatever against said estate, and nothing was allowed to or
From the above facts it appears that Ellice Humiston, though a creditor of the deceased, has never become a creditor of his estate. The plaintiff, in his anxiety to subject the estate which he represents, to a liability in her behalf, states a reason thus: “ The said Ellice did not present any claim against the estate of the deceased, because she believed her claim was secured by the said mortgage deed and note; and she continued to believe that the same was sufficient for her protection until after the time limited for presenting claims against said estate had expired.” In reference to this, two principles enunciated by this court are significant. The first is stated by Seymour, J., in Cone v. Dunham, 59 Conn., 145, 161. The other may be found in Rhodes v. Seymour, 36 id., 1, 7. The court, by Butler, J., said: “It is well settled by authoritative decisions in this State and elsewhere, that executors are agents or trustees only, whose duty it is to administer according to the will of the testator and according to .law, and not to subject the estate by their admissions.”
The provisions of General Statutes, § 588, are most specific, positive and absolute: “ Every creditor of an insolvent estate who shall not exhibit his claim to the commissioners within the time limited, shall be debarred of his claim against said estate unless he can show some estate not embraced in the inventory or accounted for by the executor, administrator, or trustee.” Here, then, is a creditor, the only existing one so far as the complaint indicates, whose claim is barred, unless, as asserted, there be “newly discovered estate.” But
For the validity of anything which may be called title or the equivalent for title in an administrator appointed for such purpose, and situated as the plaintiff is, to real estate held as this is, it is requisite that eveiy provision of General Statutes, § 588, be complied with. First there must be an inventory; without this there can he nothing else. Then, of course, there must be more. The claim must be presented, not to the commissioners, whose duties are at an end; not to the administrator, who never had or has any duty, in passing upon the claim; but to the Court of Probate, which is required to decide upon it and allow what shall appear to be due the creditor. Thereupon an order is passed, as is further prescribed. Then, and then only, in a case like the present, does the condition of things exist which makes applicable to it, in its entirety, what was said by this court in Bassett v. McKenna, 52 Conn., 437, 438 : “ It is too late in Connecticut to question the right and the duty of an administrator to inventory property fraudulently conveyed by his intestate, when that property is needed for the payment of debts, and to institute all necessary proceedings to appropriate the property to that use.” Then, and then only, does it appear that there is a debt to be paid, for which, therefore, property — the property in question — is needed, and that it is claimed by the estate as assets for that purpose. Then the administrator has title in the sense that he is entitled: that it is his right and duty to institute necessary proceedings to appropriate the property to that use. In the absence of the allegations referred to, and of anything in any sense equivalent thereto, the demurrer, as based upon this part of the claim, was properly sustained.
One ground remains: the plaintiff asserts the land is needed to constitute assets for the payment of the legacy. Much of what has already been said applies to this claim. But further, it does not appear, nor is it claimed, that Ellice Humiston can be at the same time a creditor and a legatee. It is asserted that she is one or the other. The legacy is
There is no error in the judgment complained of.
In this opinion the other judges concurred.