Bennington v. Dinsmore , 2 Gill 348 ( 1844 )

Magruber, J.,

delivered the opinion of this court.

This cause was submitted to Harford county court, upon a case stated. By this it appears, that Samuel Dinsmore, the intestate, died in 1826, and that the plaintiff in error, with another, on the 29th July 1827, executed two several instruments of writing, and thereby promised to pay “to the heirs, administrators or assigns,” of the estate of Samuel Dinsmore, deceased, the sums of money expressed in them. Upon those instruments, suits were brought, first, in the name of Jane Dinsmore and Thomas II. Gillispie, administrators of Samuel Dinsmore, and upon a revocation of their letters, and the grant of others to the present appellee, before the arrest of the appellant, the last administrator issued a writ in his name, as administrator.

It is contended, that no judgment could have been rendered in favor of the plaintiff below, although the suits had been continued, as well as brought in the names of the first, who administered upon the estate, because of the uncertainty by whom the money may be demanded. And indeed, it is difficult to determine, who can be said to be the obligee ? One would suppose not the administrators, to the exclusion of the heirs, nor the latter, rather than the former.

We are told, in Bacon's Abridgment, (Title, “Obligations,”) that an obligation of <£200, to two, solvendum, the <£100 to the one, and the other, to the other, is a void solvendum, and this because, although there may be several obligees, yet a person cannot be bound to several persons, severally. But in this case, it appears that the obligor is not to be bound to both, but to one or to the other, and to which more' than to the other, the instruments themselves, do not instruct us. How is it to be ascertained, to which of them the obligations are to be delivered? or is a delivery to each necessary, in order to the validity of the instruments?

It may be, as was suggested in the argument, that those instruments furnish evidence of an indebtedness either in the life time of the intestate, or for property, a part of his estate sold since his death. If so, the administrators have still their right of action, but that right of action must not be an instrument of writing, which the debtor is at liberty to discharge by paying the money to the heirs, persons who have no right to receive or to release debts due to the estate.

It must be admitted, that separate suits cannot be brought upon each of these instruments of writing; the one in the name of the heirs, and the other in the name of the administrators, and a judgment be obtained by each, for the same money. Yet, if one be authorized to bring suit, surely an action of debt may be brought by the other, and the pendency of the action by one, could not be pleaded in bar, to the action by the other. There is no “certainty to a certain intent in general,” in this case, and if “the creditors of Henry M. Chew” could not maintain an action upon the order of the court, set forth in the case of Boteler & Belt vs. State, use of Chew, &c., in 8 Gill & Johnson 360, it would seem to follow, that the objection arising from the uncertainty in this case, to whom the instruments of writing are to be delivered, and in whose name a suit must be brought, must prove equally fatal in this case.

But if a suit could be instituted in the name of the administrators of the intestate, still the plea of non accrevit infra fyc., of which it is agreed, that the defendant shall have the benefit, would defeat the action. “Where there are more writs than one, it must appear that they are regular continuances of each other, JYorris’ Peake, 425, and the writs issued in the name of Samuel Dinsmore, administrator of Samuel Dinsmore, are not regular continuances of those sued out in the name <of the original administrators.

JUDGMENT REVERSED, WITH COSTS.