6 Johns. Ch. 360 | New York Court of Chancery | 1822
The chief object of the bill is, to have the claim of the plaintiff, against the estate of Moses Hazen, liquidated and allowed, and paid out of the moneys in Court, being the proceeds of lot No. 62, in the Refugee Tract, in Clinton county. The bill admits, that without the aid of those moneys, the plaintiff is apprehensive he shall wholly lose his debt j and the prayer of the bill is, that his account may be settled and paid by the executor, or satisfied out of the moneys in Court. The answer of the defendant, White, as sole acting executor, states, that there are no assets unadministered, unless it be those moneys j and there is nothing in the testimony to contradict that averment.
Assuming; then, for the present, that the suit is by a creditor of M. H., for the proceeds of lot No. 62, the first inquiry is, whether the defence, set up by the Attorney General, on behalf of the people of this state, be a good defence, in reference to that fund.
The testator devised the lot No. 62, to his brother, William Hazen, in fee $ and it is an admitted fact, that the testator died in 1803, seised of that lot, and that the devisee was then an alien; and continued an alien to his death, which was prior to 1808. The people of the state became seised of the lot upon the death of W. H., without any inquest of office, and this appears to be very clear and unquestionable. In the first place, the children of W. H. were aliens also, and could not take by descent. The law, guie nihil frustra, never casts the freehold upon an alien heir, who cannot keep it; and, as the freehold cannot be kept in abeyance for a moment, it vested immediately in the
The title to the lot was, therefore, in the state, from the death of W. H.; and the next question is, whether the proceeds of the lot sold to the United States, under the authority of this state, are liable to be appropriated to the payment of the creditors of Moses Hazen.
When the lot was sold to the United States, and the proceeds paid into this Court, to be distributed among the persons entitled to receive them, the officers of the government were, no doubt, ignorant, equally with all the parties concerned, that the lot had escheated. The title was presumed to reside in the representatives of M. H., the testator, though that title had never been investigated. The history of the case is shortly this, as appears from the records of the Court. The United States, after the last war,-required this and some adjoining lots, lying at Rouse’s Point, at the north end of Lake Champlain, to erect thereon fortifications for the defence of the lake. The consent of the government of this state was duly declared, and a writ ad quod damnum issued out of this Court to assess the damages of the owners of the lots so appropriated. The da
The admission of the title of the state does not affect the jurisdiction of the Court over the moneys in its possession, as assets, for the payment of debts. The laud, upon the death of Ilazen, the testator, was chargeable with his debts, in the hands of his heir or devisee, and the escheat of the title, by means of the alienage of the devisee, would
(1.) As to the staleness of the demand.
A Court of equity will not permit accounts to be overhaled m favour oí a party who has slept upon ms rights, without any just cause, for a great number of years; and more especially as against the representatives of a party who may be supposed to have had the means of defence in his lifetime, but who may have left his successors without the requisite vouchers. In Bridges v. Mitchell, (Bunb. 217.) the Court of Exchequer would not decree an account for one partner against another, for the balance of an account of twenty-four years standing before the filing of the bill, though the parties had been partners as merchants, and were both alive. After such a length off time without suit, the Court observed, that the balance should be presumed to be satisfied, and they allowed the plea, which relied equally on the length of time and the statute of limitations. In the more modern case of Hercy v. Dinwoody, (4 Bro. 257.) the plaintiff, as a creditor, had lain by a great length of time, and suffered an estate to be distributed ; and the Master of the Rolls, for that cause, would not suffer an account to be taken, but dismissed the bill. The same rule was recently declared in the English Chancery, in Chalmer v. Bradley, (1 Jacob & Walker, 62, 63, 64.) and length of time was considered as forming a presumption of right, and a bar to the allowance of an account. The case of Ray v. Bogart, (2 Johns. Cases, 432.) decided in Chancery, and afterwards in the Court of Errors of this state, on appeal in 1800, is a very strong instance of the exercise of the discretion of the Court, in refusing to sustain a bill for the settlement even of a co-partnership account, when the demand had become stale by the lapse of time and the death of parties. The whole,.
The staleness of an account, is a bar to its admission.
It is to be noticed, in the first place, as a fact appearing in the case, that the testator was rendered quite helpless, by a stroke of the palsy, as early as April, 1786; and it is assumed as another, and a well known fact, that he remained bedridden, from that period to his death. The dealings with a man labouring under such severe infirmity, require, in a special degree, to be controlled by the check which the Courts have provided against error and mistake in dormant transactions, for such an unfortunate individual is not to be supposed to have been able to give a -continued and sharp-sighted attention to his affairs.
The testator appears to have made repeated efforts in his lifetime, and without success, to bring the plaintiff to an account. By his letter to the plaintiff of the date of the 12th of October, 1792, he complains that the plaintiff had not accounted to him for some business which he had undertaken to do for him as early as 1790, and that he had a full power of attorney from him (the testator) to act for him, and Hazen appeared to be dissatisfied, and thought it was time for the power to cease. “ It was high time,” he said, “ that the plaintiff and he should come to a settlement of accounts, and he requested the plaintiff to forward what he had against him as soon after the receipt of the letter as he could.” In a subsequent letter, from Hazen to the defendant, White, dated August 26th, 1796, he says, the plaintiff “ appeared to be anxious for a settlement of their matters, and had agreed to be at Troy in January following.” It seems that the testator resided at Troy during the latter years of his life, and as he was immoveable himself) the plaintiff, if he would meet him at all, must meet him at Troy. The testator, in a letter to White, of the 24th of May, 1797, complains that the plaintiff had disappointed him, and that he could not get him to a settlement. “ The prospect,” he states, “ which he had of a compromise with the
It may now be properly asked, why did not the plaintiff meet Hazen, according to his repeated solicitations, and come to a settlement with him ? We have proof that he was earnestly pressed in 1792, and again in 1797. He waits until the death of Hazen, in 1803, without making one single effectual effort to meet him in his lifetime, and settle the account. This is the conclusion to be drawn from what appears in the case. It is not until December, 1818, or nearly sixteen years after the death of Hazen, that he filed his bill for a settlement of his accounts, after the executor bad admitted that the testator kept no vouchers, and that be must be beholden to the plaintiff for the credit as well as the debit side of the account. It appears to me that it would be hazardous in this case, and dangerous as a precedent, and contrary to the doctrines and policy of the Court, to undertake to investigate and settle an account of such long standing, reaching back to the year 1783, accompanied with so many grounds of complaint at the negligence of the party, and with so many peculiar circumstances of obscurity, difficulty, and danger.
Ttie sialeness of the account is then, of itself, a decisive objection to a bill calling upon the Court to open and admit it.
(2.) The statute of limitations appears also to constitute a valid defence, and to present an insuperable objection to the suit.
Where the tations “begins to run, n continues to run, without being any6dedsuteeijTiriif evmn.
The six years had probably closed upon the last item in 'the account before the testator’s death, and I see no room por (¿oritjt that the statute applies to the case. When the
statute once begins to run, it continues to run without being impeded by any subsequent event,'
A codicil, with three competent witnesses, may be a republication of a will, so as to give effect to a devise, otherwise void, on account of the devisee being a witness to the original will.
To give effect to the acknowledgment of the executor, as against the heir, and thereby to defeat the application of the statute of limitations, it is again contended, that the executor can, at his pleasure, and at any time, not only confess the debt as against the personal estate in his hands to be administered, but give to the creditor the complete benefit and execution of his secret lien upon the real estate, by causing it to be sold, and the proceeds applied to the payment of the debt. If he can control the real estate in this way, in despite of the heir, why should not his confession of the debt, it may be said, be equally binding upon the heir ? It would appear to me to be a sufficient answer to this objection, that the executor has not, in fact, in this case, made the requisite application, or obtained any order to sell the real estate to pay the plaintiff; and, until that has been done, his power over the real estate does not ■exist, and his acknowledgment of the debt is a nullity, as
An executor or administrator cannot, at any time he may think fit, apply to a Surrogate, under the statute, for a sale of the real estate of the testator or intestate, for want of sufficient personal assets; but must make the application within a reasonable time.
The statute (1 N. R. L. 450—453.) declares, that the executor or administrator, when he shall discover or suspect that the personal estate is insufficient to pay the debts, shall, “ as soon as conveniently may be,” make a just and true account of the personal estate and debts, and, after filing an inventory, and fully applying the personal estate to the discharge of the debts, he shall deliver such account to the Judge of Probates, or Surrogate of the county, and request his aid in the premises. The Judge is then to make an order, directing, by a due public notice, “ all persons, interested in the estate,” to appear and show cause, why so much of the real estate, whereof the testator or intestate died seised, should not be sold, as will be sufficient to pay the debts. He is then, at the time and place .appointed, to “ hear and examine the allegations and proofs of the executor or administrator, and of all other persons interested in the estate,” who may make or offer any. If the heir or devisee be an infant, the Judge or Surrogate is to appoint a guardian, for the sole purpose of taking care of the interest of the infant in such proceedings. And if, “ upon due examination,” he shall find the personal estate not sufficient to pay the debts, he shall direct the whole or a part of the real estate to be sold. The sales, under the order, are to be made by the executor or administrator, for cash, or upon credit, and on such terms as he shall deem.
This is the substance of the provisions of the act upon the áubject, and I infer from them, that the law intended, that the executor, or administrator, should make his application with due diligence, and in a reasonable time ; and, if he does not, the Judge or Surrogate has, from the nature of bis judicial trust, a discretion to reject the application. What is reasonable time, may be another question. All I mean, at present, to say, is, that the Judge of Probates, or Surrogate, must be entitled to determine, in sound discretion, what is a reasonable time, under the circumstances of the case, and to determine when the executor did first discover, or had ground to suspect, the insufficiency of the personal estate, and whether, as soon as conveniently might have been, he had made out an account, and filed an inventory, and applied the assets in hand according to the requisitions of the statute. If he has been guilty of gross negligence, or palpable laches on these points, he is clearly not in season within the meaning of the act, and the Judge or Surrogate ought not to permit him, or the creditor who prompts him, by this summary proceeding, to sweep away the real estate of the heir.
And what la tlme,° must-be the6g™rogatey in his sound der" the"’ dithe caseCeS o£
Other provisions in the law, show the like necessity of diligence in the settlement of the estate of the testator or intestate. The executor and administrator are required to file their inventory within six months after they have as
It seems, that one year, after the executor has entered on the duty of his office, is a reasonable time, within which to apply to the Surrogate, in Ordinary cases.
Such a rule of construction is most beneficial to the public, since it conduces to the quiet and security of titles, and to the protection of the bona fide purchaser, holding under the heir or devisee. Public policy requires, that a power of such formidable import, and which- affects the bona fide purchaser equally with the heir and devisee, should be strictly construed. Nor will the creditor, for whose benefit the whole provision is intended, be materially affected. He has still his remedy upon his bond or simple contract, by action at law, against the heir or devisee, and can make them answer for the value of the assets, descended or devised. The creditor is not here pressed by time, as the executor or administrator, acting on his behalf, is in the other' case, because, this is not a newly created and summary power, but the ordinary course of the common law. He cannot, indeed, touch the real estate, bona fide aliened before suit brought, but he can make the heir or devisee answerable for the value of the lands aliened.
All the analogous cases in the law show, that these public trusts, created for the benefit of creditors, are to be executed promptly, and that it forms no objection, that the creditor’s debt happens not to be due within the reasonable time prescribed for the settlement of the estate. Thus, in the case of trustees, under the absconding debtor act, (1 N. R. L. 159—162.) they are to give notice of their appointment " as soon as may be,” and call upon the creditors to render their accounts; and they are to convert the estate into money, and make distribution among the creditors, “ within one year and a half” from the time of their appointment; and they are to make further dividends as assets come to hand. But the creditors are to come in and exhibit their debts, whether they be then due or not; and those who neglect or refuse so to do, by the time of the second dividend, (and which is to be " within one year” from the time of the first dividend,) are to lose their dividends entirety; and, in cases of debts not due, and not on interest, there is to be a rebate of interest from the time of actual payment. So, in the case of assignees under the insolvent debtor act, (1 N. R. L. 468—470.) they are required to make a dividend among the creditors “ within the space of one yearand if any creditor shall neglect
That the debts due, ¡s°no ob-application to the Surrogate, for a sale of the real estate, estatePtsS°not sufficient to meet the debts.
The circumstance of the debt not being due, forms, then, no obstacle to the application to the Surrogate, when the executor has not personal assets sufficient to meet it. In these cases, where the estate is to be .appropriated under . , the directions of a trustee specially created by statute, the creditor, whose debt is not due, is bound to take it equally as the other creditors whose debts are due, or waive the .... benefit of the provision! And.-can one reasonably suppose that the executor may apply, at any distance of time, and that there is any just analogy between this right of application on behalf of the creditor, and the right of entry upon land by a person claiming title, and which, by our statute, is limited to twenty years ? The real estate of a testator or intestate, is no doubt chargeable with the payment of his debts, and so far even the simple contract creditor may be said to have a lien on the real estate. But that lien existed without and before this statute provision, and it was to be enforced by a suit, in the regular course of justice, against the heir or devisee. They may, indeed, convey to a bona fide purchaser without notice before suit brought,
There is difficulty, no doubt, in fixing upon any precise period within which the executor is to apply, when the statute has not expressly mentioned any. I have suggested, as an opinion, to which I am at present inclined, without the benefit of a more direct and full discussion by counsel, that one year would, in ordinary cases, be a reasonable time 5 and that if the executor or administrator waits longer, he ought to be able to satisfy the Judge or Surrogate that he bad sufficient cause. Even under this limitation the power is dangerous, if not oppressive, to the owner of the real estate, because it deprives him of the opportunity of submitting to a jury his objections to the demand, and the facts tending to show that it is not a valid and subsisting debt. In every case, in which application to the Surrogate is made and sustained, the objection to the debt, whatever that objection may be, whether founded upon the statute of limitations, the lapse of time, payment, release, usury, fraud, &c. must be left to the judgment of the Surrogate, who alone is to determine what
These are some of the reasons why I am induced to think that the Judge of Probates, or Surrogate, is bound to exercise a judicial discretion in the case, and to require the executor or administrator to satisfy him that he has used his best diligence to ascertain the debts and the assets, and that he applies for relief as soon as he conveniently could. I am clearly of opinion, that White, the executor in the present case, is not now, at this late day, authorized to apply to have the real estate of Hazen sold, and that he had entirely waived the opportunity, even in 1813,- when ,he wrote the letters which are supposed to contain the acknowledgment of the debt. The plaintiff, therefore, cannot be permitted to give any collateral aid to that acknowledgment, from the circumstance that the executor had originally a capacity to apply to the Surrogate, and to compel the heir or devisee, or purchaser, nolens volens, to satisfy the creditor out of his real estate, for the executor had long , since lost that capacity, by his unreasonable delay.
As the interpretation of the power depends much upon •
By the statute of that state, the real estate of the testator, or intestate, is made chargeable with the debts of the deceased, and liable to be taken on execution, and extended and delivered to the creditor, on a judgment recovered against the executor or administrator. And again, when the personal estate shall be insufficient to pay the debts and legacies, so much of the real estate may be sold by the executor or administrator, on obtaining license from the Supreme Court, or the Court of Common Pleas of the county, as shall be requisite to satisfy the creditors.
In the case of Gore v. Brazier, (3 Mass. Rep. 523.) the creditor recovered judgment, four years after the testator’s death, against the executor, and not finding sufficient personal estate of the testator, he levied on land devised and sold, and in the possession of the purchaser. It was held, that an alienation by, or descent from the heir or devisee, did not discharge the lands from the creditor’s lien; and the Court said, that the lien would continue a reasonable time, and until defeated by the neglect or laches of the creditor j and they intimated, though without forming an opinion, that a delay of 20 years would liberate the lands.
That case was analogous to our actions at law against the heir and devisee, and which, with us, can only be barred by the statute of limitations in the case of simple contract debts, and by the presumption of payment, founded on the lapse of time, in the case of a specialty, and we only make the heir or devisee answerable, and not the bona fide purchaser. The case, therefore, is not applicable to the point now under consideration. The same thing may
None of these cases, however, touch directly the point we are considering. But Scott v. Hancock, (13 Mass. Rep. 162.) may be cited as an authority upon the question before me, and the discussion it contains is very able, and the principles which are there laid down extremely important.
The Supreme Court refused to grant a license, to an administrator to sell the real estate. It appeared that the only debt due from the intestate was secured -by a mortgage, and that the mortgagee was in possession, and had never demanded the debt, and that more than four years had elapsed since the granting of administration.
The opinion of the Court was delivered by ]\Ir. J. Jackson, and it was admitted, that the claim of the creditor was paramount to every title that could be acquired after the death of the debtor. If that claim or lien was as un
The statutes of 1788, and 1791, enacted, that no administrator should be held to answer to any suit, unless commenced within four years after undertaking the trust, and due notice thereof. The general effect of this statute is to discharge the lien on the estate after the expiration of four years.
But if the administrator should neglect to do his duty, and plead the statute o'f limitations, “ we need not” says he, “ now consider what would be the effect of a judgment against him in a suit commenced after the expiration of the four years, nor, how far it would conclude the heir, and expose the real estate in his hands to be taken in satisfaction of such judgment. The Court, would, probably, in such a case, not interfere in any manner that might prejudice the heir, and would leave the judgment creditor to seek his remedy against the administrator, or heir, as he
These are questions, it was observed, which affect the inheritance. If the Court should order a sale, it would decide these questions conclusively against the heir, and disinherit him, without an opportunity of defending himself by a trial of the facts by a jury.
The Court has a discretionary power in the case; and to permit an administrator to preclude the heir from making a defence, would violate that maxim of law, which says, “ that it shall not be in the power of any man, by his election, to vary the rights of two other contending parties.”
I have repeated the substance of the able argument which was delivered by the Court, because it -appears to be applicable to the case before me, and to go very far towards deciding some of the points which have been discussed. It may be inferred, as the doctrine of that case, that the executor is not to be permitted, either by his acknowledgment of the debt, or by availing himself of the power of application for the sale of the real estate, to deprive the heir, or those holding under him, from availing themselves of the defence of the statute of limitations. The same principles were advanced in the subsequent case, ex parte Allen, (15 Mass. Rep. 58.) in the opinion delivered by Chief Justice ParJcer. It was held, that the Court had a discretion on the subject of granting a license to the executor to sell the real estate, and that a purchaser under the heir, ought not to be disturbed at the will of the executor, after the time had elapsed when by law the executor had a right |o prevent the creditor’s recovery. If the Court
According to this case, then, the executor ought not, iu any case, to be permitted to obtain an order for the sale of the real estate, as to débts which would be barred at that time by a plea of the statute of limitations; and tbe reason is, that the heir, or other owner of the real estate, is entitled to the benefit of that plea, and this order would be the means to deprive them of it.
If I am not greatly mistaken, this last decision, in Mas-sachusetis, is decisive in favour of the defence setup by the Attorney General in the present case.
The subject before us underwent much discussion in the Supreme Court of the United States, in the case of Ricard v. Williams, (7 Wheaton, 60.) The question arose under a sale, by order of the Court of Probates of Connecticut, upon the application of the administrator, under a statute provision similar in substance with that in Massachusetts. In that case, the administrator applied for and obtained the order, three years after he had assumed the trust« and the validity of the order was not questioned, because it was the order of a competent Court, of peculiar and exclusive jurisdiction. It was an extraordinary and a monstrous case. Letters of administration were granted after the lapse of 28 years, and the right to sell after the lapse of 31 years, from the death of the intestate; yet the decree of the Court, being res judicata, could not be questioned in a collateral action. The point was very fully
The heirs or persons interested in the real estate, may appear before the Surrogate, and oppose the 'application of the executor for a sale, and may interpose the statute of limitations, in the same manner as if they were sued by the creditor® For it must be shown, that there are valid and subsisting debts beyond the amount of the personal estate, that is, debts not barred by the statute, before an order of sale is granted.
1 conclude, ..e.dmgly, and with the most entire con-.fiction of the sc.vJity of the defence which has been made, that the main purpose of the suit has failed. The bill, as against the fund in Court belonging to the people of this state, ought to he dismissed.
' The executor, in his answer, also sets up the statute of limitations in bar of the account. His letters of March,
-ind August, and October, 1813, do, however, go very far towards an admission of the right of the plaintiff to a settlement of accounts. In the letter of March 30, 1813, he
“ I am ready to account, but nothing is due to you.”
The bill also contains a charge of services rendered to' the defendant, White, in his character of executor; and the ' defendant did not think proper to complain of such multifarious demands. I am inclined to permit the plaintiff to take a reference for an account, if he wishes it, against the defendant, White, under the express declaration, that this is not to be construed into the admission of any right against the fund in Court, even though a balance should hereafter be found due, and reported in favour of the plaintiff, as against the personal estate of the testator in the hands of the defendant.
The following decree was entered :
“ It is declared and adjudged, that lot No. 62, in the pleadings mentioned, was vested in the people of this state, by escheat, upon the death of W. H., and that they became seised of the same upon his death, without office found, and continued so seised until the said lot was, under the authority of this state, duly transferred to the United States. And it is further declared and adjudged, that the moneys in Court, being the proceeds of the said lot, belong, also, to the people of this state, subject to the payment of the debts of M. H., provided they be valid and subsisting debts at the time of the filing of the bill. And it is further declared and adjudged, that any admissions of the