55 Me. 120 | Me. | 1867
The plaintiffs sue as executors of the last will and testament of Nathaniel Grilman. After this suit was commenced, they were authorized by the Judge of Probate for this county to compromise the claims of the defendant against the estate of said Gilman.
The Judge of Probate, in authorizing the executors to compromise, acted under the provisions of the Act approved March 22, 1864, c. 250, § 1, which is in these words:— "Probate Courts may authorize executors, guardians and trustees to adjust by arbitration or compromise, any claims for money or property, in favor of or against the estates by them represented.”
After authority thus given, one of the executors compromised the claims' in controversy and gave the defendant a discharge in full without the assent of his co-executrix.
The question presented is whether one co-executor can give a discharge without such assent. The case is submitted upon the evidence, so far as the same is admissible and competent.
By the common law, " co-executors, however numerous, are regarded in law as an individual person, and, by consequence, the acts of any one of them, in respect of the administration of the effects, are deemed to be the acts of all; for they have all a joint and entire authority over the whole property. Hence a release of a debt by one of several executors .is valid, and shall bind the rest.” 2 Williams on Executors, 620. An act by one is deemed the act of all, hence one of several executors may release the liability of a witness. Shaw v. Berry, 35 Maine, 279.
It is obvious, therefore, that either executor might have given a valid discharge of the claims in suit. The statute, c. 350, § 1, only authorizes that to be done under the sanction of the Court, which could have been done before its
The object of the Act referred to was to enable executors and administrators, by obtaining previous authority from the Judge, to compromise with-debtors with perfect safety and without being subjected to expense in sustaining their acts. Wyman’s Appeal, 13 N. H., 18.
It is well settled that, when several plaintiffs must join in a personal action, a release of one joint plaintiff is a bar to the suit. Hall v. Gray, 54 Maine, 231.
The point is taken that a proper plea has not been filed. But of that we cannot judge, as the pleadings have not been furnished us. The case is before us "to render such judgment as the legal rights of the parties may require.” The defence is an equitable one. It is not alleged that there was unfairness in the compromise. If there were any formal error in the pleadings, which is not shown to be the case, the Court would have authority to allow an amendment, if necessary for the purposes of justice, or even to allow a new plea to be filed. Rowell v. Hayden, 41 Maine, 582. Judgment for defendant.
