Judge of Probate v. Ordway

| Superior Court of New Hampshire | Dec 15, 1851

Bell, J.

The questions arising in this case grow out of the form of the bond.

By § 4 of chap. 164, Revised Statutes, it is provided, that, “no license,” (for the sale of the real estate of a person deceased,) “ shall be granted, if the heirs or devisees shall give to the judge (of probate) a bond with sufficient sureties for the payment of such just demands, (namely, see § 1, “ the just demands by law chargeable to the estate,”) and to indemnify the administrator therefrom.”

The condition of the bond, in this case, might well have been, following the language of the statute itself, “ if the said J. S. Ordway, shall, within one year from the date hereof, well and truly pay and discharge all the just demands by law chargeable to the estate of said Lemuel Ordway, deceased, which the personal estate of said deceased shall be insufficient to pay, and shall indemnify the said administrator therefrom; ” and these questions could not have arisen.

Instead of the statute phrase “ pay all the just demands by law chargeable to the estate, and indemnify the administrator therefrom,” this bond has, — pay all the just debts, legacies and liabilities of Lemuel Ordway, deceased, and of his estate, and indemnify the administrator, and save him harmless from all such debts, legacies and liabilities, and pay the expenses of administration, so far as the same have been incurred.

This was doubtless designed to be equivalent to the language of the statute, but is really no improvement, as it is inferior, both in terseness and precision; still it contains tbe substance of tbe language of tbe statute, because, disregarding all tbe rest, as mere redundance, we think, tbe expression, all * * * the liabilities of * * * the estate of the deceased, is an equivalent for tbe words “ all tbe just demands by law chargeable to tbe estate of tbe deceased.” We call to mind no'claim embraced in one of these expressions which is not included in tbe other.

Starting then from this point, and disregarding all but these material words, let us see bow these pleadings stand.

Tbe plea alleges that within one year, viz: on tbe twentieth of March, 184-9, tbe defendant paid all the liabilities of said estate, &c., and all tbe expenses of administration then incurred.

Tbe replication alleges, that tbe defendant did not, within one year, pay all tbe liabilities "of said estate; but the sum of $28.19, part of tbe liabilities of said estate, being tbe balance found due, &c., upon settlement, &c., by tbe judge, &c., defendant, though requested, to wit: at, &c., on, &c., has never paid, &c.

The rejoinder alleges, that tbe defendant did within one year, &c., pay all tbe liabilities of L. Ordway, deceased, (not the liabilities of the estate,) and indemnify, &c., from said liabilities, &c., and pay tbe expenses of administration, so far as they bad been then incurred, and no sum of $23.19, nor other sum, was found due, of tbe debts, legacies and liabilities of said deceased and of bis estate, and of tbe expenses of administration of-said estate, so far as tbe same bad been incurred at tbe date of tbe bond.

Tbe material matter of this rejoinder is, that no balance of $23.19, nor other sum was found due and unpaid, of tbe liabilities of tbe deceased and of bis estate, and of tbe expenses of administration, so far as they bad been incurred, at tbe date of tbe bond.

Now taking tbe view before suggested, of tbe obligations imposed by tbe bond, that it bound tbe defendant to pay all tbe legal liabilities of tbe estate, that is, all tbe just demands by law chargeable 'to tbe estate, and that all tbe rest is mere surplus-age, it is evident, that tbe rejoinder is defective, because it does not deny tbe substance of tbe allegation, that a balance of $23.19, part of the liabilities of the estate had not been paid: but it alleges instead, that no such balance is unpaid, of the debts and liabilities of the deceased and of the estate, and of the expenses of administration incurred at the date of the bond, which is a very different matter.

It is apparent, that by the legal effect of the bond, according to the construction we give it, it is of’ no consequence when the expenses of administration were incurred; they are liabilities of the estate and must be paid. “ The estate of every person deceased, shall be chargeable with the just expenses of the administration thereof,” Rev. Stat. ch. 159, § 14. The attempt is to raise an issue upon an immaterial matter; upon that part of the language of the bond, which seems to us to be mere redundance and surplusage. Such an attempt must of course fail, because, upon the view we take of the legal effect and operation of the bond, the rejoinder is no answer to the replication.

The point designed to be raised by the rejoinder would have been better reached by the allegation, that the said sum of 23.19, found due by the judge, &c., upon settlement, &c., was found due by reason of expenses of administration, incurred by said administrator after the date of the bond, and not otherwise.

This new fact, distinctly alleged, of course required a verification.

If demurred to, it raises the question, whether or not the bond, as it is drawn, covers the whole expenses of administration.

We think it may be well construed, to cover the whole of the just demands by law chargeable to the estate, including all the expenses of administration. It is necessary to give this force to the word liabilities, or the bond comes entirely short of its legal object. Various chai’ges are to be paid by the estate, which are neither debts, legacies, nor expenses of administration; such are the support* of minor children, &c. Rev. Stat., ch. 159, § 14.

The rejoinder is narrower than the replication, in the use of the word and, in the phrase “ liabilities of the deceased, and of the estate.” As used in the replication, and connects phrases, to wit: part of the liabilities of the deceased, and part of the liabilities of the estate; either of which is sufficient; while in the rejoinder, it connects deceased,-mñ. estate, so that the denial is that they are part of the liabilities of the deceased and of his estate both, when both are not required. The denial should be, not liabilities of the deceased nor of the estate.

The first exception or cause of demurrer is immaterial, because the reiteration of the allegation of payment is not of consequence, the only material part of the rejoinder is the latter part, — nor was there a balance.

The second cause is well founded. Every pleading must traverse some statement of the previous pleading, or it must admit the facts alleged; and set forth such new facts as neutralize or avoid the effect of them. This rejoinder does neither. It asserts no new fact, and it does not deny what is stated. It does attempt to make a denial, but it is not a denial of the matter alleged in the replication, but of a different thing entirely. The one alleges a balance unpaid, of liabilities of the estate, the other denies a balance unpaid of the liabilities of the estate, which are also liabilities of the deceased. A similar defect exists in the counter allegation of the two pleadings in regard to the expenses of administration, but is more obvious. There plication says, a balance was unpaid of the expenses of administration of said estate. The rejoinder says, no balance was unpaid of the expenses of administration of said estate, so far as the same had been incurred at the date of said bond. This is no denial of the statement in the replication. It is in fact a negative pregnant, a denial, which tacitly admits the facts it seems to controvert.

The third cause of. demurrer is well founded. If new facts are alleged, there should be a verification. If there is merely a denial of something alleged, or supposed to be alleged on the other side, the conclusion should be to the country.

The great objections to the view which we have taken, are those which result from the rules of construction, which hold, that the enumeration of one thing is the exclusion of others, and that general terms are limited by an enumeration of particulars. The bond in this case provides for the payment of the expenses of administration, so far as the same have been incurred. It is contended, that this necessarily excludes the payment of the expenses of administration incurred afterwards, whatever general words may he used, which otherwise might have a different operation. However forcible this argument might be in some cases, these are, after all, but rules of construction, which experience has shown usually to lead to right results, but which are binding on us, not conclusively, but only so far as, on comparison with other rules, they seem to lead to reasonable conclusions. But we are bound to look at the surrounding circumstances, and to weigh them in coming to a conclusion.' In this supreme court of probate, we know on what occasions the judge of probate is authorized to take official bonds. We take judicial .notice of them. We observe,0that a bond of this kind is to be given by law to the judge, only upon a single occasion and that, is, when the judge is applied to for license to sell the real estate of a person deceased, for the payment of debts, &c., and the heirs, &c., resist the application, by giving bond to pay the debts. We notice the kind of bond the law authorises the judge to receive, and requires him to exact. Thus we know what the parties must have intended, much better than by any general rules of construction; and we are bound to give to the language used, such construction as will give effect to the intention of the law, and of the court, and of the parties concerned, if it can be done consistently with the language used, however unskillfully the instrument may be drawn, and though some of the expressions used might even be understood to import a different meaning, if they were to be construed merely by the ordinary rules of inter-1 pretation, and without that same light which the statutes afford us as to the intention of the parties and of the probate court.

Judgment for the plaintiff.