Green v. Hanberry

10 F. Cas. 1110 | U.S. Circuit Court for the District of Virginia | 1830

MARSHALL, Circuit Justice.

The motion to dissolve this injunction, is supported on several grounds, which will be separately considered.

I. It is contended, that the decree of December, 1S2S, was final, as to the representatives of Capel and Osgood Hanberry, and they ceased to be parties to the cause; consequently, the decree, as to them, cannot be-changed by the court, in the manner now asked, on the part of the representatives and legatees of Peter Lyons, deceased. Were it to be-admitted, that the decree is final, and that the court cannot now modify it this admission, would not, I think, avail the present defendant. This court is not asked to-modify or alter its decree; but to restrain the defendant from placing beyond its reach, a sum of money which the plaintiff claims, and which he insists the decree does not give to the defendant To estimate the value of' this argument, it becomes necessary to look at the decree itself, and to ascertain its extent. It does not positively assert the right of the representatives of Capel and Osgood Hanberry, to a single dollar, nor positively direct the payment of a single dollar to-them. It ascertains the amount of the debt due to each individual, and the relative dignity of those debts; but does not aver the-existence of assets for the payment of any one of them, and, consequently, does not direct the. payment of any one of iliem. The court, in express terms, refuses to decide that there are assets in the hands of the administrator de bonis non, which are applicable to the payment oí the claims thus established, and assigns as the reason of this refusal, that no decision had been made on the accounts of I’eter Lyons, the former administrator of Robinson, or on the claims of James Lyons, his executor, and the administrator de bonis non of Hobinson, to retain the assets in his hands to satisfy the debt to his testator. The court, therefore, directs the payment, not absolutely, but out of such assets as may be applicable to the claims which had been established: obviousty, leaving: it to the administrator to determine the applicability of the assets. The decree then proceeds to direct the receiver to pay the claims out of the money which may come to his hands, or to transfer the securities to any creditor, who -would be willing to receive them at their nominal amount. The part of the decree which is addressed to the receiver, is obviously subordinate to, and dependent on, that part of it which is addressed to the administrator. The administrator must decide on the applicability of the assets, before the receiver can apply them; this is submitted to the judgment of the administrator, and might safely be submitted to him; because, being the executor of Peter Lyons, he would be careful to retain in his hands assets to satisfy that claim. If, then, the receiver, unauthorized by the administrator, proceeds to transfer the assets to the agent of Capel and Osgood Hanberry, the injunction which detains this subject within the power of the court, is not an alteration of the decree of December, 1S2S, but an order to insure the execution of the decree according to a sound construction of its import; ' an order to secure it from being violated under the semblance of being carried into execution.

2. The defendants insist, that Peter Lyons is not the creditor of his intestate on his administration account. Some exceptions are taken to the report, which I. have not critically examined, and upon which, the state of the cause does not require an immediate decision; but there is one important point which the court ought now to notice. The administrators of John Robinson, employed George Brooke as their agent, who transacted the business of the estate to a very great extent. The commissioner reports .a large balance against Mr. Brooke; the representatives of Capel and Osgood Hanberry insist, that the administrators themselves are responsible for the sum in the hands of their agent, and must settle his accounts. That the creditors of Robinson are not bound to pursue him. This is true. But the case furnishes reason for the opinion, that Brooke's account may not have been accurately settled, and the court thinks, that the representatives of Robinson’s administrators ought to be permitted to show cause against the report in this particular. Whether Peter Lyons alone, should be held responsible for the whole sum, which may be due from Brooke, or whether it should be divided between the administrators, is a question which need not be decided, till the sum shall be ascertained.

3. But the counsel for the representatives of Capel and Osgood Hanberry insists, that the same report which shews Peter Lyons to be a creditor of Robinson’s estate, shows Edmund Pendleton to be a debtor, and Peter Lyons is responsible for the debt due from Edmund Pendleton, because their administration bond is joint, and they are consequently sureties for each other. This is true, and if the balance against Edmund Pendle-ton was regularly established, no doubt could be ascertained of the liability of Peter Lyons for it. But this balance is not established. The report, as to the representatives of Edmund Pendleton, is entirely ex parte, and cannot bind those representatives. The report, therefore, establishes nothing against the estate of Edmund Pendleton, and cannot be brought to bear on Peter Lyons. 1 perceive, therefore, no sufficient cause for dissolving the injunction, at present. The plaintiffs in the original suit may either proceed with the investigation of the accounts of Peter Lyons, holding him responsible for his own transactions, or may make him responsible for the transactions of Edmund Pendleton, by bringing the representatives of Edmund Pendleton before the court. The motion is continued.

A question of considerable importance has not been suggested, but ought to be taken into view. James Lyons, the executor of Peter Lyons, and the administrator of John Robinson, is dead, it is said, insolvent. If he died indebted to the estate of his intestate, it is an inquiry of serious import, whether the money he thus owes, ought not to be considered as so much received by him, as the executor of Peter Lyons.

Motion to discharge the attachment, and dissolve the injunction overruled, with leave to'renew it; and the several reports made in the cause re-committed with directions to re-consider and report thereon, and settle, state, and report the accounts of the administration of Edmund Pendleton, deceased, on the estate of John Robinson, deceased, and the accounts of George Brooke, agent of the administrators of Robinson.