Knapp v. Hanford

| Conn. | Jun 15, 1826

Daggett, J.

Two objections are made to the declaration on the motion in arrest.

1. No action at law will lie against an executor or administrator for a legacy, without an express promise; the remedy being in chancery. This, undoubtedly, is the law in Westminster-Hall. Deeks & ux. v. Strutt, 5 Term Rep. 590. This doctrine stands on the ground, that a court of chancery only can impose terms on the party, who is entitled to recover. No such reason exists in Connecticut. Our courts of probate, to which the settlement of estates belongs, is vested with full powers on this subject, as a recurrence to the statutes will shew. It has, therefore, long been settled law here, that assumpsit upon an implied promise can be maintained against an executor, if it be proved that he has assets. Lamb v. Smith & ux. 1 Root 419. Spalding v. Spalding, 2 Root 271. Goodwin v. Chaffee, 4 Conn. Rep. 163.

2. If assumpsit can be maintained, debt will not lie. This objection is equally groundless with the former. 1 Chitt. Plead. 105. 1 Swift’s Dig. 572. 1 Wms. Saund. 218. n. 4. 219. e. Ewer v. Jones, 2 Salk. 415. S. C. 2 Ld. Raym. 934. 937. Debt lies on legal liabilities. This doctrine rests on unquestionable authorities. I therefore think the declaration good.

3. By the motion for a new trial, it appears, that testimony was admitted by the court, and submitted to the jury, that Seth Weed, the first executor of Lucy Ann Weed, acknowledged, that he had her estate in his hands sufficient to pay all the debts and legacies; and that he had, in fact, paid all the legacies given by the will, except that now sought to be recovered.

It is to be observed, that the defendants are not charged in the declaration as executors of Seth Weed, but of Lucy Ann Weed. Out of her estate the plaintiff seeks to recover. Her assets must be resorted to, to satisfy the plaintiff’s claim. Seth Weed’s declarations, then, were received in evidence, not to render Seth Weed’s estate in the hands of the defendants, liable, but Lucy Ann Weed’s estate. In this point of view, I think the evidence was incorrectly admitted. Seth Weed could, doubtless, bind himself, his personal representatives and his estate, by his admissions; but it is not easy to see how they could affect the defendants, in relation to the estate of Lucy Ann Weed. If Seth Weed had wasted all the estate of Lucy Ann Weed, surely the defendants would not be liable, in this action, on the ground of assets. The issue joined was upon the indebtedness of the defendants, charged as executors of Lucy Ann Weed. The verdict finds, that the defendants owe, and that the plaintiffs shall recover out of the estate of Lucy Ann Weed in their hands. The proof that her estate is in their hands, is from the declaration of Seth Weed, that it was in his hands. This, it is believed, was not admissible. If the declaration had been in assumpsit or debt against the defendants as executors of Seth Weed, on his liability founded on the assets of Lucy Ann Weed in his hands, the proof would have been pertinent, and perhaps effectual.

4. The correctness of the charge of the judge is questioned. The jury were instructed, that if they found, upon the evidence of the declarations and admissions of Seth Weed abovemention-ed, that he had sufficient assets of Lucy Ann Weed, they must presume they came to the hands of the defendants, unless the contrary were shewn by them. The Court, being satisfied, that the evidence of Seth Weed’s admission ought to have been rejected, need not, perhaps, decide on the propriety of the charge; yet as this point is directly made, and it may be of importance in future litigation, that it be disposed of, I remark, that no authority or principle is shewn, by the counsel, in support of it. The plaintiff in debt or assumpsit, is bound to shew indebtedness, to maintain his action. In this case, he would cast the burden of proof on the defendants, and insist, that they should prove, that no assets came to their hands, or else submit to a recovery against them. I am of opinion that this cannot be done.

The counsel for the plaintiff relied on the case of Wells v. Fydell & al. 10 East 315. The decision in that case is consistent with the principles adopted by this Court. It proves, that the executor of an executor, sued for a breach of covenant made by the original testator, must shew, in his plea of plene adminis-travit, not only that none of the goods of the original testator, at the time of his death, came to the defendant's hands, but also must shew, that the first executor fully administered, or at least that he, the second executor, had no assets of the first, so that there was no fund out of which a devastavit by the first executor, could be made good. In that case, the defendant was charged, as the defendants might have been in this, as the executor of the first executor, and not, as here, of the first testator. In that case, if the first executor had wasted the estate of the first testator, still the second executor ought to be liable, if he had assets of his testator. No position is taken here in opposition to that doctrine: on the contrary, it is admitted.

If the defendants had been sued as executors of Seth Weed, the executor of Lucy Ann Weed, must not the plaintiff have proved assets of Lucy Ann Weed in the hands of the defendants, or to have been in the hands of Seth Weed, and by him wasted, and in the latter case, that assets of Seth Weed were in their hands? Can, then, the burden of proof be thrown on to the defendants, by erroneously proceeding against them as executors of Lucy Ann Weed?

A new trial therefore must be granted.

The other Judges were of the same opinion, except Brainard, J., who was absent, by reason of indisposition, during the argument, and therefore gave no opinion.

New trial to be granted.