25 Me. 18 | Me. | 1845
The opinion of the Court was drawn up by
The plaintiffs are judgment creditors of the defendant’s intestate. The defendant exhibited evidence, that she had returned an inventory of the estate; that she had obtained an allowance to herself as his widow; that she had settled an account in the Court of Probate; and that the whole amount of the estate contained in the inventory had been applied to the payment of the expenses of the funeral and last sickness, and to pay her allowance and expenses of administration.
The plaintiffs offered to prove, that she had not made a full and perfect inventory of the estate. That certain valuable rights and credits were wilfully omitted.
The statute relied upon in defence provided, that when the amount of the estate shall be absorbed or used up in the payment of such expenses and of the allowance to the widow, “ it shall not be necessary to represent such estate in solvent; and
The documents produced by the defendant bring her case within the language 'of the act of March 15, 1838, c. 322, unless the word estate can be considered as including all the property, rights, and credits, of the intestate, and not that portion only, which was included in the inventory. That the word estate as there used had reference to the estate represented by the inventory will be apparent from several considerations. If it were not so, a faithful administrator by tho omission to include any property or credit in the inventory, because he had no knowledge of its existence, would, by a settlement of an estate as provided in the act, be subjected to a suit, when tho first knowledge of such omission might be presented to him at the trial. He might thus be subjected to loss, when the statutes providing for the settlement of estates contemplate, that he should have opportunity to correct such an omission without suffering any injury. By the estate as inventoried alone could such an administrator be guided in coming to a. conclusion, whether it would be necessary for his protection to render the estate insolvent. And by that only could the Court of Probate be guided in the appointment, of commissioners, and in the discharge of all its other duties, except when called upon to act in relation to some estate said to be omitted in the inventory. A similar provision is found in the Revised Statutes, where the word funds is used instead of the word estate, c. 109, <§> 4, by which the protection is made effectual in such cases, if the funds derived from the estate as inventoried, and acknowledged by the administrator, have been thus exhausted. If this must be the construction of the statute as applicable to an administrator, who had faithfully executed his trust, it will not admit of a different construction upon proof of unfaithfulness. It is not usual to find any such distinction in the construction or application of statutes designed upon the performance of certain acts for the protection of
It would be necessary in this case to disregard the express provisions of the statute, to permit the suit to be maintained for the purpose of trying an issue, of a somewhat anomalous character in such a suit, to ascertain whether the administratrix had faithfully executed her trust. It is insisted that such a course of proceeding must be permitted, or a party injured by the unfaithful conduct of an administrator, in omitting to inventory all the property of the intestate, will in cases like the present be without remedy. For he cannot institute a suit upon the official bond, until he has established his debt by the judgment of a Court, or the report of commissioners of insolvency. This argument can only prove what too often happens, that one change of a statute provision requires another to be made, and yet it is not made, and thereby a remedy supposed to be continued is found to be defective or destroyed. A court of justice would not be authorized to refuse to give effect to the change actually made, if it should perceive, that such might be the result. It is not however certain, that the plaintiffs in this case are without remedy. The Court of Probate is authorized in some cases to consider those to be creditors of an insolvent estate, who have not established their debts by the judgment of a Court on the report of commissioners. And an estate, settled as in this case, must be considered as one actually insolvent, according to the provisions of the Revised Statutes, c. 109, <§> 29, which provides, that proof of a debt may be made before the Court of Probate, if further assets come to the hands of the administrator. If the Judge of that Court should be satisfied, that assets existed in such a case, it is not perceived that he would not be authorized to act in behalf of a creditor who, if they were obtained, would be entitled to share them, by a citation to the administrator, and by a removal of him, if necessary, that the assets might be secured and accounted for to
The act of March 15, 1838, cannot be considered as unconstitutional, for it acts only upon the remedy by a discharge of the administrator from all suits under certain circumstances; and leaves the contract valid and effectual against any assets, which have not come to hand and been exhausted.
Nonsuit confirmed.
