1 Fla. 332 | Fla. | 1847
Lead Opinion
This suit was brought up by writ of error from the Circuit Court of Jefferson County. It was instituted, (as appears by, the declaration), to recover the amount of a promissory note for two hundred and two dollars, with interest from the first day of February, eighteen hundred and thirty-four, given by' William- B.'Nuttall, (in his life time), to one Francis C. Pripleau, and endorsed by him to-the plaintiff. The defendants put in four pleas. . First, the general issue. Second, the Statute of Limitations. . Third, Plene Administravit; and Fourth, a plea in the following words, to wit: And for further plea in this behalf) said defendants come and defend the wrong and injury when, &c., and say actio non; because they say they are not now either o.f them Administrator, or Admiriistratrix of the said William B. Nuttall, deceased; but on the day, and year of the commencement of this action, and before its c'ommencenient, to wit, on the 25th day of March, 1844, in the. County aforesaid, they were by competent authority, to wit, the Hon. the County Court of Jefferson County, duly and lawfully discharged of and from their administration of the said estate of William B. Nuttall,, deceased, as appears by the record remaining in said County-Court, and this they are ready to verify by said record. Wherefore, they pray judgment, &c.
Upon the first plea, issue was joined. To the second and third, the plaintiff, by his counsel, demurred ; and his demurrers were sustained. To the fourth, the plaintiff, by his counsel, put in a special demurrer, and, assigned therefor the following causes, viz :• For that the said defendants do not allege in their said plea, that they have
-This demurrer -was overruled, the plea sustained,-attdfor that cause alone the case was brought up to this Court, ,
The errors assigned are : 'First, .The Court erred in overruling the demurrer of the plaintiff to the defendants’ fourth plea. Second. The Judgment of the Court should have been for. plaintiff below on said demurrer. . • • <
The Statute authorizing the discharge of an Executor or Administrator is in the following words, viz : That if any Executor or Executrix, Administrator or Administratrix, shall be desirous of obtaining a discharge from his or her executorship or administratorship," it shall be competent for him of her to receive the '^ame upon application-to the Judge of the County Court, or other person charged -with the. duti’es-qf ordinary. Provided, That six months’ noticfe of such intended application-be given in one oS more of the gázettes-neafest the place where the letters were ‘granted"! And provided also, That it shall appear that said applicant has faithfully-and horiestly discharged the trust and confidence reposed in him or her; and the discharge so obtained, shall' be taken to opera'te as a release, from the duties of Executor or Executrix," Administrator of, Administratrix; and shall furthermore operate as a bar to any suit against the person so having acted as Executor or'.Executrix, Administrator or Administratrix, unless the sanie be commenced within five years from the date of such discharge, 'saving to 'all persons non compos mentis, infants, imprison
This presents several very important questions upon the construction of this Statute, which have been very seldom raised, and never, it is believed, settled by any authoritative decision in this State; and which, viewing them in any aspect in which they may be presented, are not perhaps entirely clear of difficulty, although we think that a due consideration of the phraseology of the section referred to, and the application thereto of the proper canons of construction, will leave little room for doubt upon the subject. Whether there is such a Statute in any other state or country, we are not advised; certain it is, that we have not been referred to any decisions made upon a Statute like this, and without the aid of any such decision we must endeavor to construe it by such lights as we have.
This case has been argued on behalf of the plaintiff in error, as though it stood upon the same grounds as if there had been a revocation of the letters of administration granted to the defendants in error upon the estate of Nuttall; but a reference to the reasons for a revocation of such letters, and the mode of proceeding in relation to a revocation, and the mode of proceeding to obtain a discharge under this Statute, and what the Statute requires to be shewn before a discharge can be granted, it will be seen that the two cases are widely different, and bear little or no analogy to each other. If there be an Executor, and administration is granted before probate and refusal, it will be revoked on the will being afterwards proved, because it is void. Comyn’s Digest, Title Admr., B. 1. Or, if there be two Executors, and one of them proves the will and the other refuses, and he who proved the will dies and administration is granted before the refusal of the survivor, subsequently to the death of the Co-executor. Abrams vs. Cunningham, 2 Levintz, 182. Toller on Executors, 120, (to which' many other cases of a similar description might be added). Also, if granted by incompetent authority. Tol-ler on Exors., 120. In all these instances the administration is a nullity. But there is another class of cases, where administration is not void, but voidable only; as if administration be granted to a party not next of kin. Blackborough vs. Davis, Salk. 38. 1 P. Wms. 43.
At common law the ordinary might repeal an administration at his pleasure; but now, since the Statute 21st Hen. 8, if administration be regularly granted to the next of kin, according to the provisions of the same, the ordinary has no such discretion. If he assign a cause for a repeal, the temporal courts are to judge of its sufficiency, 11 Vin. Abr. 114. Comyn’s Digest, Title Admr., Book 8. Black-borough vs. Davis, 1 Peere Wms., 42. How far the Statute of 21st Hen. 8, affects the powers of Judges of Probates in this State, or whether it affects them at all, it is not necessary for us now to en-quire. It certainly does not prevent a revocation of letters by them, pursuant to the provisions of the 31st section of the Act of 20th Nov. 1828, above cited. In every case, however, of a revocation of letters of administration, whether absolutely void or merely voidable, the Court, at the instance of some person interested, or upon its own motion, proceeds against the person to whom administration has been committed; and upon the ground, too, that he never had any just
Does a discharge, obtained pursuant to these provisions, operate as a bar to suits instituted against the person who has been thus discharged, in the character of Executor or Administrator, treating him and charging him as such in the same manner as though no such discharge had been granted ? This question depends upon the proper construction of the fifth section of the act of 15th Feb., 1834, before cited. One of the primary rules laid down by the sages of the law for the construction of Statutes is, that “ there are three facts to be
We are not obliged in this case, in order to sustain our view of the proper construction of this Statute, to carry the intention of the Legislature beyond the literal words of the 5th section of the Act, or to put a construction upon them that may seem even to be contrary to the letter. Until we arrive at the provision in the Statute now under consideration, Executors and Administrators are always spoken of as such, but here the phraseology of the Act changes. They are no longer spoken of as Executors and Administrators; no longer considered as such, and certainly they no longer represent the estate.— To this the case, of Skinner vs. Frierson & Crow, 8 Alabama Rep. N. S. 915, which arose under a Statute of that State, authorizing Executors and Administrators to resign their authority by writing, delivered into the Clerk’s Office, Aikin’s Digest, 127, is in point. The words of the provision we are discussing, are, “ and the discharge so obtained shall be taken to operate as a release from the duties of Executor or Executrix, Administrator or Administratrix; and shall furthermore operate as a bar to any suit against the person so having acted as Executor or Executrix, Administrator or Administratrix, unless the same be commenced within five years from the date of said discharge.” The discharge is not a bar to any suit brought against the person so having acted, if brought within five years from the. date df such discharge. This change of phraseology, we think, has a meaning too clear to be disregarded.
The distinction between suits against Executors and Administra, tors “ as such,” and suits to charge them personally, runs through all the books, is familiar to every lawyer, and must be supposed to have been known to the Legislature who passed this Act; and having provided for a discharge which should operate as a release from all the duties of Executor or Executrix, Administrator or Administratrix, they took care, (in authorizing suits to be brought against them after such discharge), to use a term which only authorizes suits to charge them personally. “ Any suit against the person so having acted,” is
This is not a solitary instance where our Legislature has evinced a laudable disposition to save the honest and praiseworthy from the grasp- of a rapacious creditor, while it has taken care, at the same time, to leave an open way whereby to reach dishonesty and fraud. The Supreme Court of Alabama, in the case of Thomason vs. Haynes’ Executors, 5 Stewart & Porter, 181, held that an Executor cannot, by a resignation of his authority as such, avoid the rendition of a judgment against him as may be in regular progress for assets un-administered at the time of his resignation; but remarked, “ What would have been the consequence of a resignation at an earlier stage of the administration, it-is not now necessary for us to enquire.”
This proceeding, however, is essentially different from the one we have been considering. There, no notice is given, no account required, no shewing made or required to be made of a full and faithful administration, no action of the Court is had. Here, was a full accounting, and a judgment of a Court of competent jurisdiction, which we are not at liberty to disregard, rendered in a proceeding governed entirely by the provisions of a Statute highly remedial; a proceeding to which the ordinary rules relating to the rights of creditors in the Ecclesiastical Courts and Courts of Probate have no application. But a judgment to .which the general principles of law relating to the conclusiveness of judgments, do not fully apply; for by those principles, a judgment of a Court of competent jurisdiction is conclusive upon the parties as long as it remains in force. Wallace vs. Usher, 4 Bibb, 508. Hayden vs. Booth, 2 A. K. Marsh. 353. So a judgment or decree of a Probate Court, is conclusive between the parties, until legally disaffirmed, and cannot be enquired into collaterally. Judges of Probate vs. Filmore, 1 Chipman, 423. Bush vs. Sheldon, 1 Day. 170. This judgment, however, owing to the peculiar provisions of the Statute, is not so far conclusive as to bar
This discharge is “ to operate as a release from the duties of Executor or Executrix, Administrator or Administratrix.” This language is in “ presentí,” but a release from these duties would not (it is apprehended) operate as a bar to a suit brought against the person who had thus acted as such Executor or Executrix, Administrator or Administratrix, for any liability incurred for an unfaithful or dishonest act in regard to the assets with which such person had been entrusted, and for which, if a suit were instituted, it would charge him personally. As, however, the discharge might operate as a bar to such a suit, the Legislature having declared the effect of the discharge as to the duties, went on to declare that such discharge shall furthermore operate as a bar to any suit against the person so having acted, &c., unless the same be brought within five years from the date of such discharge ; which is equivalent to saying that it shall not bar such a suit if brought within five years from the date of the discharge. This is in “futuro,” and shews, we think, most clearly, when taken in connection with the provision as to the duties as above stated, the “ intent of the law-makers,” that the discharge should be an immediate and effectual bar to suits instituted against such parties in their fiduciary character.
Again, if a suit were brought against such party in that character, it would of course be for the non discharge of some duty as Executor or Executrix, Administrator or Administratrix; and to say such discharge shall operate as a release from those duties, and yet that the person thus released may be sued for a non discharge of any of those duties, would be a solecism; and, besides, if the party has faithfully and honestly discharged the trust and confidence reposed in him, what reason is there why he should be harrassed with such suits? We think there is none, and that it was the intention of the Legislature that he should not, and that it has in effect so said.
If the view that we have taken of this matter be correct, (and we entertain no doubt on the subject), then the Court below did not err in overruling the plaintiff’s demurrer to the fourth plea of the defendants.
The Judgment pf the Court below is affirmed with costs.
Dissenting Opinion
delivered the following dissenting opinion:
This case depends upon the effect to be given to a discharge by the Judge of the County Court to an Administrator, under the 5th section of the act “ in addition to an act concerning wills, &c., approved 15 Feb., 1834,” by which it is provided, “ that it shall be competent for an Executor or Administrator to receive a discharge upon application to the Judge of the County Court, provided six months’ notice of the application be given, &c. and provided, also, that it shall also appear that the said applicant has faithfully and honestly discharged the trust and confidence reposed in him, and the discharge so obtained shall be taken to operate as á release from the duties of Administrator, &c.; and shal 1 furthermore operate as a bar to any suit against the person so having acted as Executor or Administrator, unless the same be commenced within five years from the date of said discharge; saving to all persons infants, non compos, &c., who may have an interest’in said estate, two years from the time of the removal of any disabilities herein enumerated.” Duval, 188, sec. 5.
The majority of the Court in the opinion delivered, affirm the doctrine that a' discharge obtained under this act is a bar, and although in the case under consideration it was obtained on (the very day the suit of plaintiff was instituted, yet they hold a plea setting up the discharge to be conclusive and fatal to it. I cannot concur in this judgment of the Court, nor in the reasoning contained in the opinion delivered; and conceiving that important principles are involved far beyond the mere amount in controversy, have felt it a duty to record the grounds of my dissent.
The Statute under discussion, has been a subject of anxioqs
“ Recently, all the Judges, and particularly the late and present Lord Chief Justice, have manifested the strongest inclination to adhere more closely in the construction of Statutes to the words of the Act of Parliament. I have often lamented, says Lord Tenterden, that in so many instances the Courts have departed from the plain and literal construction of the Statutes relative to the settlement of the poor. Where the authorities are silent, I shall hold myself forced to construe these Acts of Parliament according to the plain and popular meaning of the words.” 2 B. & A., 522. Dwarris.
In another case, the same distinguished Judge says, “ the words may probably go beyond the intention; but if they do, it rests with the Legislature to malee an alteration, the duty of the Court is only to give effect to the provision.” “ It is safer,” said Mr. Jus. Ashurst, “ to adopt what the Legislature has actually said, than to suppose what they meant to say.” Dwarris, 707 — 8. 1 T. R., 52.
If these Courts, in the fullness of a career distinguished by singular wisdom, ability and virtue, gaining each day upon the confidence and affections of their people, have thus so clearly and evidently disavowed this doctrine in its past extent, may it not well become a Court just entering upon its weighty and responsible duties to pause before they affirm doctrines thus condemned as improper, and which may certainly be questionable in reason and good sense ?
If resort is to be had to construction, however, let us examine the rules appealed to by the majority of the Court. The first is, that “ a Statute is to be so construed that no clause, sentence or word, shall be superfluous, void or insignificant.” This rule supports the views we entertain; for, according to our conception, the decision of the Court can only be sustained by the disregard of all the words after, “ Executors or Administrators,” and by treating the words, “ unless the same be commenced within five years from the date of said discharge,” and also the saving of infants, &c., as wholly “ superfluous, void and insignificant.” These words stricken out, the decision of the Court is well supported.
The second rule relied upon, is that “ the intention of the makers is to govern, although such construction may seem to be contrary to
He continues, “ the determination of the Judges in Edrick’s case, is very deserving of attention. And the Judges said they ought not to make any construction against the express letter of the Statute, for nothing can so express the meaning of the makers of the Act as their own direct words — ‘ index animi sermo” Dwarris on Stat.,'725.
All Acts are to be taken by reasonable construction, and in doubt, ihl cases Judges may enlarge or restrain the construction of Acts of Parliament, according to the sense of the law-makers.” “ Beneficial Statutes have always been taken and expounded by equity ultra the strict letter, but riot, it is well and wisely said,’ contra the letter.”— Dwarris, 726.. But admitting the rule to its fullest extent, where is its application to the case under consideration ?
Still a third rule is referred to, “ that the old law, the mischief and the remedy, are to be considered, and we are to give such construction to the ne,w law as will suppress the mischief of the old and advance the remedy under the new one.”
It is first important to ascertain with accuracy and correctness the state of the old law; and here, we apprehend, the Court is in error in supposing that a discharge of the Executor by the Court of Probate was not allowed previously to this Statute. In the earliest period of legal proceedings, we find it thus described : “ The effect which arises of a just and true account is this — the Executor having well and faithfully performed his office, and made his account accordingly, ought to be acquitted and discharged from further molestation and suits,
And “thus the ordinary, finding the account to be true and perfect, may pronounce for the validity thereof, and so acquit the Executor so far forth as appertaineth to the Ecclesiastical Court. But this is perpetually to be observed, that the creditors to whom the 'testator did owe any thing, and the legatees, and all others having interest, are to be cited to be present at the making of the said account, otherwise the account made in their absence, (and they never called), is not prejudicial to them.” Swinburne, p. 379. And this has been the law of Florida, -also; for, at the earliest period of the Territorial Government, the common and statute laws of England of a general and not of a local nature, down to the 4th of July 1776, were declared to be of force. The law prevailing in the Ecclesiastical Courts on'the subject of Wills, Executors and Administrators, was by various English Statutes, and by recognition in the English Courts, part of the law of England, and consequently thus embraced by our statute. Preface to Swinburne on Wills. Duval, 357. Whilst the Executor was thus discharged by the court of ordinary, he was yet liable in the. common law courts and in the courts of chancery; in the former to shew that he had fully administered at the suit of a creditor, and in the latter his account was allowed to be falsified at the instance of any party interested by shewing error, mistake, &c. 2 Williams on Exors., 1213, 1239—40. 1 Story’s Equity, 509, 512. The reason for deviation in these cases from the rule as to the conclusiveness of the ordinary action of judicial tribunals, was that a creditor of the estate could not falsify the account in the court of ordinary, his remedy being held to be at common law — he could not contest the payments of the Executor or Administrator, but as to him the oath of the party was conclusive. 2 Will, on Exors., 645 — 8, 1265. 1 Story’s Eq., 509.
This was the state of the former law. The mischief pertaining to it is stated at large in the opinion of the Court, and made to consist of a “continuance of liability to suit by the Administrator ; objection to reinvestigation of his accounts, expense of counsel, and trouble and vexation of defence of suit, embarrassment, &c., from sickness, loss of vouchers,” &c.
“ Surely if it stand with reason that stewards, receivers, bailiffs, tutors, fathers, and such as have to deal for other persons, should be accountable for their stewardship, &c., with greater reason may it be maintained that an Executor should be subject to account rather than they; for they for the most part have to deal for such as be living, who may have an eye to their doings; but an Executor hath to deal for a dead person, who can neither see nor hear if his Executor deal unjustly. Again, if the Executor have well and faithfully executed his office and discharged the trust reposed in him, what should move him that he should not willingly make a due account thereof, &c. On the contrary, if he have played the unjust steward, much rather in that case ought he to be urged and compelled to make an account, that his fraud and deceit being detected he may be justly punished, and others by his punishment premonished.” Swinburne, 376.
“ The account is to be made to the Ordinary, who, therefore, not un-aptly may be termed the Executor of Executors, because he examines the account of every Executor, and the father of the fatherless, for that to poor orphans he is instead of a father.” Swinburne, 377.
To close, the door against enquiry, to prevent investigation and a suit to obtain their rights by creditors, legatees or distributees, are views as to the intention of the Legislature we conceive not lightly to be entertained. The excuse made, if a good one, would equally prevail against all investigation, and a settlement of accounts even before the Judge of Probate ,• for an Administrator may there, also, “ be put to great trouble, vexation and expense, and be prevented from settling his accounts by sickness, loss of vouchers or other casualty.” If he “ has faithfully arid honestly discharged the trust, and be in fact of an honest and ingenuous mind,” what reason has he to fear trouble or investigation; would he not rather invite the latter and reject, as an imputation upon his good name, a statutory provision which
But let us look at the remedy which finds such favor with the Court, and which it is said is so greatly preferable to the old rule. The discharge is thus obtained: “ It shall be competent for' the Administrator to receive the same on an application to be made after six months5 notice in one of the gazettes nearest the place where the letters were granted; and provided it shall appear that the applicant has faithfully and honestly discharged the trust and confidence reposed in him.” The proceeding is not entirely exparte, but as nearly so as it could well have been made, if any notice were to be given. It is not directed to be addressed to any one, nor is a time or place fixed for the hearing, but the discharge is to be after six months’ publication. But a more material omission and objection is that there is no provision for the making and issue by any of the parties as to any distinct fact, as to payment of debts, amount of assets, or contestation of the items of the account in any respect. Nor is there provision for the trial of any such issue, and yet upon the rightful solution of all these questions depends the result whether “ the Administrator has faithfully and honestly discharged the trust and confidence reposed in him.” This material and important matter is disposed of by the lame and unsatisfactory provision — “ povided it shall appear that the applicant has faithfully discharged the trust.” If a legatee desire to contest the receipt of his legacy — a creditor the satisfaction of his demand— a distributee the alleged amount of the assets — the expenditures and disbursements — how are all these to be disposed of? The Judge of Probate is not skilled to decide intricate questions of law. According to our Constitution, the jury are judges of the fact, and there is no power given to summon one. Even his power to subpoena witnesses is questionable ; and yet rights of property to any the greatest extent are put in jeopardy and determined by a proceeding before unheard of; without any time or place fixed for the hearing; without any issues; without witnesses, without jury, and without judge.
It is supposed to be incongruous and a solecism, to discharge these officers and release them from their duties whilst their responsibility continues; but why is it so ? Sheriffs, clerks, and other officers, are discharged from office and released from duty, and yet continue to be liable on their bonds for years afterwards. This has always been the case with Executors and Administrators, whose duties cease long before their responsibility. “ Familiar as the distinction between suits against Executors and Administrators as such, and suits to charge them personally, may be to every lawyer,” yet I confess myself wholly at a loss for the meaning of the Court in this position. Was it the design to say that they should be charged in the declaration individually, or personally, and not as Executors ? This would seem to be the rational inference. If this be true, actions then under this statute can only be brought for “ transactions arising subsequent to the death of the testator; for these are contracts of the Executor or Administrator, which charge him personally and in his individual character,” and not officially. 1 T. R. 487, 691. 4 T. R. 104. 8 Mass., 213. 3 do. 318, 190. 6 Hals., 163.
It is suggested that the action for a devastavit is alluded to. This can hardly be the case ; for it is said, in case of a suit to charge the Administrator personally, “ the burden of proof is changed, the onus rests on plaintiff, and he must shew by his pleadings and proof, that at the time the discharge was granted, the defendant had not faithfully and honestly discharged his duty.” Now, in case of devasta-vit, the proof always lay on plaintiff as it does in all other actions. What change then is made ? 3 Chitty PL, 254. 1 Saund. 219, N. 8.
What then are the actions that may be maintained, and how are they to be preferred under this new rule of action ?
If the discharge by the Statute operates only as a bar personally, or to a personal action, it would seem to me that actions against the Administrator in his official character, not being embraced by its provisions, would not be barred; they remain as at common law. It is said that “ the discharge is a judgment, to which the general principles of law relating to the conclusiveness of judgments do not apply.” This, it seems to me, surrenders the whole ground ; for, if not conclusive, it cannot be a bar ; if not a judgment, and having the effect of one, there is no other position to occupy with it. How otherwise is it made to conclude the action of plaintiff and prevent recovery ? After the lapse of five years, we consider that the discharge has the full effect of a judgment, and prevents all contestation as to the Administration. The Statute, in my view creates a new remedy, providing a prospective bar to operate unless suit be commenced within five years — allows suits by persons generally against the person having acted as Executor or Administrator within five years after' his discharge ; and infants, persons beyond seas, and others, five years and two years after their disabilities are removed, to bring suits.
Whilst the decision of the Court makes the discharge an absolute bar, the opinion makes it an immediate bar and not a bar — “ a judgment of a Court of competent jurisdiction,” and yet “ not a judgment so that the general principles of law apply to it” — conclusive and not conclusive — a proceeding of a Court of Probate, yet to which
A decision supported by such a'contrariety of positions, leaving thé subject in such uncertainty and obscurity, being so clearly in opposition to the manifest and unequivocal expressions of the Statute, can scarcely prevail as a permanent rule of action. -
By the Constitution of the State, the Judges of Probate are confined to the duties usually pertaining to courts of ordinary, subject to the direction and supervision of the courts of chancery. ’ It is to be hoped that this provision may correct, at least so far as action under the State Government is concerned, the evils which I apprehend may flow from this decision of the Court.
