| Tenn. Sup. Ct. | Sep 6, 1808
Lead Opinion
Debt upon a bond given by the intestate, under date of the 21st of May, 1798. Plea, plene administravit, payment and issues. *301
The plaintiff produced a copy of the inventory returned by the administrator July, 1799, amount $715.56. An order of the County Court, appointing a committee, or commissioners, to make a settlement with the administrator, and report thereon to the next court. Also, a copy of the report containing the settlement, and showing that the administrator had disbursed more than the amount of the inventory. Our law respecting executors and administrators does not of itself form a complete system. It must be considered as alterative of and supplementary to the common law; by the English law, administrators are to settle their accounts with the ordinary, and there it is usual to give notice, though not absolutely necessary to the settlement. By our law, the powers exercised by the ecclesiastical judge in England, respecting the estate of deceased persons so far as they are compatible with our situation, are given to the county courts; they have appointed commissioners to settle with the administrators, and report. This is correct, and agreeably to Godol. Orp. Leg. 150.
The County Court having authority to make this settlement, it must be considered at least primâ facie evidence, though notice was not given to creditors individually or otherwise.1
The defendants' counsel produced bills of sale dated in August, 1797, by the deceased to his children for four negroes; three of the bills of sale were registered in August, 1797, before contracting this debt; the negroes remained some time in his possession, — they were however generally reputed in the *302 neighborhood to be the property of the children. Two of the negroes were delivered by the deceased, and two remained in his possession until his decease. These two negroes were conveyed to two of his daughters, who continued to live with him. None of these negroes were taken possession of by the administrator, nor did he make return of them as part of the estate, — one of the two last-mentioned negroes died; the daughter, upon her marriage, took the other away.
Robert Hays, one of the children of Charles Hays, the deceased, was produced as a witness to prove the plea of plene administravit. He was objected to on the ground of interest, being entitled to a distributive share; to which it was answered that a residuary legatee might be a witness, and replied upon 2 Dall. 95; 7 Term Rep. 61.
Addendum
The cases are not parallel. In the case of a residuary legatee, the interest is contingent, — in the principal case certain, therefore the witness cannot be heard.
On the part of the plaintiff, John Gordon was produced as a witness to show that these bills of sale were fraudulent. He proved that at the time of the execution of the bills he was present; that the deceased then said there were unjust demands against him, which was his reason for making them; the negroes continued in his possession, the children to whom conveyed being then with him.
M'KINNEY, for the plaintiff, argued that the conveyances or bills of sale for the negroes were fraudulent. Beside, the evidence of Gordon, and the circumstance of their continuing in possession, made them so. 2 Cun. ed. Bac. 604, 605.
KENNEDY, e contra, relied upon the bills of sale having been registered before the debt arose; the reputation of the property in the neighborhood, and at all events the administrator was not liable for any property but that which came to his hands, — these negroes never did. 2 Bac. 604. The bills of sale being obligatory on the deceased, were equally so on his administrator, who could not dispute them.1 *303
The negroes were not included in the inventory, they are there mentioned as the property of those to whom they were conveyed.
The settlement with the County Court showed disbursements to the amount of $759.20, in the payment of debts These payments were allowed and adjusted by the committee of the County Court, and afterwards confirmed by that court. The amount of the inventory is $719.56, — we have paid more than was received from the estate. An executor or administrator is justifiable in paying a simple contract debt, unless he has notice of one by specialty. Godol. 146, pl. 617; Bull. N. P. 178.
The debt was contracted after the bills of sale, and therefore cannot be considered fraudulent as respects this debt, for it was not in existence.
WHITE argued at great length in conclusion.
Addendum
Two points present themselves in this discussion:
First, whether the conveyance of the negroes be fraudulent.
Secondly, a more complete view of the settlement by the County Court.
In relation to the first, I feel much difficulty, arising principally from a comparison of the cases of Bethel v. Stanhope, Croke Eliz. 810, and Hawes v. Leander, Croke Jac. 271. At this moment I feel it difficult to reconcile them. Roberts on Fraud. Conv. 593, 594, has pointed out these two cases, but did not notice any inconsistency in them.
Where personal property is conveyed and delivered, to be fraudulent, it must be with a view to defraud some existing creditor, and, if fraudulent as to him, it will be so as to subsequent creditors. But, upon general principles, it is otherwise where the individual keeps possession after the bill of sale, — that would be a fraud in itself upon subsequent creditors or purchasers, unless the registration of the bill of sale takes the case out of that rule. Independent of the Act of 1801, c. 25, § 2, I am inclined to think that registration is not sufficient to withdraw from it an imputation of fraud, unless notoriety *304 accompanied the transfer. Since that act, it might seem that the law were otherwise. Gordon states that the deceased said there were unjust demands against him; this is not sufficient to prove that there were legal or just demands against him, — some existing debt ought to be proved.
If the jury should be of opinion that the deceased owed debts at the time of the bills of sale, which he meant to defeat, the conveyance will be fraudulent and void, and if we take the case of Bethel v. Stanhope as our guide, the negroes will be considered as a part of the estate of the deceased in the hands of the administrator, and he would be liable for their value. He was by no means clear, however, that it were legal to make the administrator liable, when the property never came to his hands, and even if it did, and he should deliver it under a bill of sale of the deceased, it seems questionable whether he would in that case.
As it respects the settlement by the County Court, it appears that the nature of the debts paid is not stated in the settlement, whether by judgment, bonds, or otherwise. It occurs as being conformable to legal principles that this settlement should be considered as primâfacie evidence of payment in a due and regular course of administration. The County Court had competent authority to make the settlement, and we must presume it was correctly done.1
Godolphin, 150, says that the executor or administrator ought to give notice of the time and place of such settlement to the creditors, when they would be bound by it. It has not been the practice in this State to give notice, and in fact the administrator may not know who the creditors are or where they live.
If the plaintiff had, previously to the settlement, given notice to the administrator of his bond, it would then be incumbent on him to prove on what account these payments were made. Under the plea ofplene administravit, the onus probandi lies on the defendant, and if he fail in proving disbursements to the amount of the inventory of sales, his plea is false, and judgment must be for the plaintiff, unless he *305 excuse himself by showing that some of the debts arising on the sales were lost without his fault.2
CAMPBELL, J., concurred.
POWELL, J., being employed, did not sit.
ORIGINAL NOTE. — Upon consideration of the case Bethel v. Stanhope, Croke Eliz. 810; I am well satisfied that the second resolution is not law, unless it be upon the ground that an executor de son tort can be rendered liable with respect to goods when a rightful one cannot. The case of Hawes v. Leander, Cro. Jac. 271, is believed to accord with reason and legal principles. If a man make a fraudulent gift by deed, and dies, the property being in his possession at the time of his death, and the donee take them, or the administrator give them up on the authority of the bill of sale, it surely would not be a devastavit.Vide 1 Esp. 335; 7 Johns. 161" court="N.Y. Sup. Ct." date_filed="1810-11-15" href="https://app.midpage.ai/document/osborne-v-moss-5472697?utm_source=webapp" opinion_id="5472697">7 Johns. 161, and authorities referred to in the margin of the case of Hawes v. Leander, the last edition of Croke. The remedy should be against the donee, who may be sued as an executorde son tort. 11 Vin. Ab. 219, 2 T. 587.
NOTE. — It was the settled law of this State, by a series of decisions, that a fraudulent conveyance by the decedent was as binding upon the personal representative, as upon the decedent himself, so that he could attack the conveyance neither at law nor in equity, 4 Hay. 297; 3 Hum. 567; 6 H. 131 and 160. But now by 1852, 283, 4 and 48, carried into the Code 2395, the personal representative, when the estate is insolvent, may subject property fraudulently conveyed to the payment of debts, by bill. Boxleyv. McKay, 4 Sn. 286.