Wyman's Appeal, 13 N.H. 18

Wyman's Appeal

13 N.H. 18 | Superior Court of New Hampshire | 1842

Parker, C. J.

The statute of July 1, 1825, enacts, that the judges of probate, upon application, may authorize and empower an executor or administrator to compound and discharge any debts or demands due to the estate, in case of the insolvency of the debtor, on receiving such sum as the executor or administrator shall deem proper, or as the judge of probate may direct; and that the executor or administrator shall not be held accountable, on the settlement of his administration account, for any debt or demand ho may so compromise and discharge, beyond, the amount he shall have received.

It does not follow, that if an executor or administrator make a compromise of a demand due the estate, without obtaining such authority, he is necessarily to be charged with the full amount of the claim.

Prior to the passage of that act, there was no statute provision upon the subject. But it was the duty of executors and administrators to act for the greatest benefit of the estate in this respect, and to obtain the greatest amount upon the *20debts due, that they might by the exercise of a reasonable diligence. . And it is not to be doubted that, before the passage of the statute, an administrator might lawfully compound with a debtor, and receive less than the amount of the debt, if he could show that what he had done was beneficial to the estate. But he acted in some peril in the matter ; for if an objection was taken, the burden of proof lay upon him to show that he had acted judiciously, and that the estate had not been prejudiced by the compromise; and if he failed in this, he might be made chargeable with the difference.

T^o obviate this difficulty, and perhaps also to remove doubts upon the subject, the statute has provided a mode in which the administrator, by obtaining a previous authority from the judge, may compromise with a debtor, with perfect safety, and without being subjected to expense in sustaining his acts.

But the right to compromise which existed prior to the passage of the statute, is not taken away. It may still be exercised as before, subject to the same limitations and risk.

As the appellant acted in this case without any special authority from the judge of probate, and objection is made by those interested in the estate, it falls upon her to prove that the compromise which she made was judicious and beneficial, or at least not prejudicial to the estate. This she-has. not done. The report of the auditor finds that she acted in good faith, and by the advice and assistance of disinterested, judicious and discreet men; but this is not enough. They may not have “ known all the facts of the case. She may not have obtained all the information respecting the ability of the debtor which she ought to have had, and might have obtained, by the exercise of reasonable diligence ; and the estate may have suffered materially by her acts. How this is, does not appear ; and the report must be recommitted for a further enquiry.