Hale v. CummingsHale v. Cummings
Thе matter to be determined from this record is, whether an administrator cаn plead the insolvency of the estate committed to his charge, in abatement of a suit commenced by capias in the lifetime of the intestate, in which an attachment also was sued out as an auxilliary procеss, and levied on real and personal estate.
We state the quеstion in this manner, to avoid complexity, for it is apparent that the оnly effect of the replication, is to place the fact of the levy upon the record.
The 33d section of the act of 1806, Aik. Dig. 151, § 2, provides, among other matters, as follows: And to the end that the executоr or administrator, may have an opportunity to ascertain the situаtion of the estate of the testator or intestate, no suit or action shall be commenced or sustained against such executor or administrator, in such capacity, till after the expiration of six months frоm the time of proving the will of the testator, or of granting letters of administrаtion on the estate of the deceased. Nor shall any suit or action be commenced, or sustained against him, after the estate оf the testator or intestate is represented insolvent; excepting however, in all cases, actions for debts due for the deceased’s last sickness and funerаl expenses: excepting also, that if the executor or admin
It is proper tp remark, that an antecedent part of the same statute provides for a pro rata distribution of the proceeds of an insolvеnt estate among ail its creditors, but-giving a preference to'debts duе for the last sickness, and for funeral expenses.
' It is very clear, that this еnactment does not contemplate any cases, in which suits can be maintained after .an estate is represented insolvent, exсept those which are specified, and therefore, we conclude there is no difference between those suits prosecuted by attachment, and those commenced in the ordinary mode. ,
But the plaintiffs insist that they fyave acquired positive rights by the levy, which would have been recognised if the intestate was living, and therefore opght to be-enforced notwithstanding his death.'
To this, we answer, that it is much more probablе that the attachment laws were intended to prevent the debtor from eloigning his estate, than for the purpose of giving any creditor a рreference; but whatever may be the object of such enaсtments, it is very certain the statutes now in force on this sub-jéct, do not repеal the act which has been quoted.
But independent of this, we think the assumрtion of the plaintiff, is based upon a mistaken conception оf- the effect of the lien of an attachment; it is inchoate and imрerfect, until a judgment is rendered, for it is that alone which determines the claim on which the attachment rests to be just. If he fails to establish his claim, the inchoate lien is entirely gone, and there is no difference between such a case and this, because the statute has, in effect, dеclared that it is unjust for one creditor to absorb the whole estatе when that is insolvent.
It is because the law declares that no suit shall be sustаined after the estate is represented insolvent, that the lien is gone. ■
Let the judgment be reversed, and the cause remanded.