| Conn. | Jun 15, 1840
This action is prosecuted by the judge of probate for the district of Norwalk, upon an administration bond, against James Stevens and his surety, as executor upon the estate of Hezekiah Whitlock, deceased, to recover the sum of eighty-nine dollars and twenty-four cents, for the benefit of Monson and Edwin Hoyt, creditors of said estate.
The estate of Whitlock has not been represented insolvent, but has been treated, by the administrator, as a solvent estate ; and there is no claim that any other action at common law has ever been instituted, for the recovery of this debt; or that it has been ever otherwise ascertained and liquidated, than as set forth in the plaintiff’s replication.
The first exception taken to the replication under the demurrer, is, that the nature and character of the debt sought to be recovered, and alleged to be due to Monson and Edwin Hoyt, is not set forth. We do not see how the replication can be delivered from this infirmity. Nothing more is alleged in regard to this debt, than its amount. If it is conceded, that a creditor of a solvent estate, by an action on the probate bond, in the name of the judge of probate, can recover his demand against the estate; and this, too, before its existence has been judicially determined, by a court of common law ; and if, in this action, an administrator is, in the first instance, called upon to defend against such a demand, it would seem to be no more than a principle of common justice, that he be reasonably apprized, by the pleadings, of the nature of the claim made upon him. Without this, he can never know how to defend ; nor wrould a judgment for
This opinion proceeds upon the assumption that the record and proceedings of the court of probate, set forth in the replication, are not in the nature of a judgment establishing a debt due from the estate of Whitlock to Monson and Edwin Hoyt. If an estate be insolvent, the report of commissioners, when approved, for many purposes, is equivalent to a conclusive judgment. No other tribunal than the board of commissioners, in such cases, can adjudicate upon the claims of creditors; and all proceedings for the recovery of demands upon insolvent estates, except before commissioners, are prohibited or suspended. The course of action, where'an estate is solvent, is essentially different The judge of probate, in such case, has no authority to determine the rights of creditors, and can neither establish nor reject their claims. These must be prosecuted before, and proved and established by, the courts of common law or equity jurisdiction ; and actions may be instituted and prosecuted for their recovery against executors, &c., as well as if the debtors were alive. The creditor of a solvent estate, never prosecutes his claim before a court of probate. He exhibits or gives notice of his •demand to the executor, &c. ; and if it is not paid, he sues and recovers before the courts of law or equity, regardless of what the judge of probate may think of his claim ; and cannot be affected, by any proceedings between such judge and the executor, &c., regarding it, to which he is no party. In the present case, there has been no action of the court of probate upon the claim in question: there has only been an adjustment of the administrator’s account, in which this demand appears as recognized by the administrator. If this alone be regarded as a judgment establishing the debt, then if the administration account had been adjusted, by the court of probate, excluding this demand, we suppose Monson and Edwin Hoyt must have been concluded thereby — a result to
Some reliance seemed, in the argument, to be placed upon this probate record, as furnishing evidence of an admission of the validity of this demand, by the executor, as conclusive against the estate. We do not so consider it. It is very sure that an executor, as well as any other trustee, may subject himself personally, by his admissions ; or may thus furnish evidence of his own acts ; but that he cannot subject the estate to the payment of a debt, by his admission of its existence, is well settled. Peck v. Botsford, 7 Conn. Rep. 173. Pease v. Phelps, 10 Conn. Rep. 62. Thompson v. Peter, 12 Wheat. 565. We doubt whether this record furnishes any other evidence against the executor, than that such a claim was duly presented to him against the estate which he represented. He might well have supposed, at that time, that the demand was just; and was justified in making provision for its payment, by including it in his administration account. Subsequent investigations might have satisfied him, that nothing was due : if so, he had right, and it was his duty, to resist payment, unembarrassed by his prior acts.
The plaintiff adverted to the fact, that in this case, an order to sell real estate had been made, by the court of probate, predicated, in part, upon the debt in question ; and claimed, that unless a recovery can be had against the administrator, he will, as a consequence, be permitted to retain, of the avails of the land sold, a sum equal to this debt. This consequence does not follow. The executor may, at any time, be required to account for the avails of the land sold under the order, and to pay over any surplus remaining in his hands, after paying the debts really due, together with the allowed charges of settlement.
The superior court is advised, that the replication is insufficient ; and that judgment upon the demurrer be rendered for the defendant.
Judgment for defendant.