Willoughby v. McCluer & Holbrook, 2 Wend. 608

Willoughby v. McCluer & Holbrook

2 Wend. 608 | N.Y. Sup. Ct. | 1829

By the Court, Savage, Ch. J.

By the English books, it seems to be understopd that an inventory is not conclusive, either for or against an executor. (Toller’s Law of Executors, 249. 3 Bacon’s Abr. 45. 2 Fonbl. 418,n. a. 1 Salk. 316. 2 Ves. 194.) The executor is to be responsible for *610the . assets of his testator; and there is no reason why, by procuring a low appraisement, he should pocket the differerice between the actual and the appraised value; nor, on the other hand, that he should be responsible for the appraised value, when he can shew it was much beyond what the article would or did bring at a fair sale. The case-of Tappen v. Kain, (12 Johns. R. 120,) is supposed to establish the doctrine, that the truth or falsity of a plea of plene administravit must be determined by the inventory only. Such is the language of Platt, justice, who delivered the opinion of the court in that case, and, in reference to the facts of that case, it was correct. The point decided there was, that where the whole real estate is sold for the payment of debts, by order of the surrogate, the executor is not responsible for the avails to the creditor directly as for assets, but to the surrogate as trustee. The remark, that executors could only be responsible for the amount of the inventory, must be understood as applicable to such a case, and not as a universal rule ; for, as such, it is entirely unsupported by authority.

A fair construction of the statute, (1 R. L. 311,) supports the rule as decided by the court below. That no executor shall be cited in the court of probates to account only by the inventory, unless by a creditor, &c. plainly implies that the •persons excepted may cite him to account by something else beside the inventory. This statute is substantially like the English statute, where the rule is, that at common law, the inventory is enquirable into, and the executor must account for all assets in his hands. The common pleas, therefore, decided correctly.

There is a clerical error in the record ; but the judgment is substantially right. The administrators having pleaded a false plea, became personally responsible, not only for the costs but the debt. The form, however is, that it be collected de bonis testatoris si, &c. et si non, de bonis propriis.

Judgment affirmed.