Owens v. Collinson , 3 G. & J. 25 ( 1830 )

Dorset, J.,

delivered the opinion of the court.

The first question to which our attention is called in the consideration of this case is, are the securities in air administration bond, in a suit brought by a distributee against the administrator, competent witnesses to prove that the assets of the deceased have been consumed in the payment of his debts? Upon principle and analogy, this question is simple and easy; but when viewed in reference to decisions on the subject, it cannot be regarded as free from difficulty. In Carter vs. Peace, 1 T. R. 163, it was decided, that in an action against an administrator, one of his securities, for the due administration of the effects, is a competent witness to defeat the action. And this case is cited as establishing that principle in 2 Stark. Ev. 775. The grounds assigned by the court in support of their opinion, were, that “ the bare possibility of an action being brought, is no objection to competency;”—“that in order to disqualify a witness, it is necessary to show that he will derive a certain benefit from the result, one way or other;”—“ that even the creditor of the administrators, which is a stronger case, would be a competent witness.” With great deference to authority so imposing, it does appear, that the grounds upon which the decision of the court is placed, are not sufficient to sustain it. In the first place, it is not true as an uniform rule, or principle of law, that a creditor is a competent witness for administrators. He is only so where the assets are sufficient for the payment of debts. Where they are not, whether the administrators be plaintiffs or defendants, if the verdict swells the fund to which he must look for the payment of his debt, his incompetency is manifest. He is only competent, therefore, where the verdict cannot affect his interest. Can it be said then, that the admission of a creditor to testify for the administrator, (under the circumstances in which only his testimony is admissible,) is a stronger case, than that of a surety in the administration bond testifying for the administrators, defendants; when it is considered that a verdict for the defendants is a discharge pro tanto, of his liability on his bond; and that a verdict for the plaintiff is evidence against him the witness, in a suit on his administration bond. Can it be a bare possibility that an action will be brought, that the interest is too remote, when the liability is so immediate, the interest so obvious, the benefit so certain ?

The case at bar, is not one, where the recovery against the administrator, is an indispensable preliminary to the institution of a suit against the securities; but one in which their responsibility, (except in amount) is already fixed. Where they might have been sued before, or may be sued after the decree of the Chancellor, where the amount which ought to be recovered against the defendant, is identical, with that which should be recovered against them; where the decree too, may be used in evidence against them. But even admit it were the case, where a recovery against the principal is a pre-requisite to the commencement of an action against the security, as in the case of a creditor suing an administrator; upon principle and analogy, the decision should be the same. The interest is direct; as by defeating the suit, he discharges himself from all claim for its amount. ITis liability is immediate; as upon failure to make the money of the administrator, his bond may be put in suit. That the bail is an incompetent witness for the defendant, is a principle so universally admitted, that authorities need not be cited to prove it. In 2 Stark. Ev.786, it is laid down as text law, that “where a surety would be immediately liable, in case of decision against the principal, his interest is obvious, and therefore a bail is incompetent in an action against his principal.” In what respect is the bail’s responsibility more immediate than that of a security in an administration bond, where his principal is sued by a creditor ? After judgment, and a return of a non est to ca. sa. and not before, can process be had against the bail. After judgment, a return of nulla bona upon afi.fa. and not before, can you sue the security, in an administration bond. If the verdict be for the defendant, the bail is absolutely discharged from all liability for the debt sued for—if for the defendant administrator, his security is equally so. But the bail has this obvious advantage; his liability is not absolutely fixed and certain. At any time before, or within a few days after the return of the scire facias against him, he may surrender his principal, and thereby is absolutely discharged. Not so with the security in an administration bond; he has no such means of self-exoneration. But the present is a much stronger case, than even that of bail or surety in an administration bond, the administrator being sued by a creditor. Here if the plaintiff had any cause of action, the liability of the surety was fixed, and certain, and his only means of exonerating himself, was by-defeating the claim of the plaintiff. Is it possible he can be deemed a competent witness for that purpose ? Without violating all analogies, and the best established rules of evidence upon this subject, we think the testimony of the securities in the administration now before us, cannot be received. That the views of this court have heretofore been in accordance with the present determination, we think inferable, from their opinions in the cases of Seegar, Ex’rs vs. the State use of Betton, 6 Harr. and Johns. 162, and Fergusson vs. Cappeau’s Adm'r, 6 Harr. and Johns. 394,

A liability for costs of suit renders a witness incompetent. In a suit by an indorsee against an accommodation indorser, the maker of the note is not a competent witness for the indorser; because in defeating the suit, he discharges himself from the costs, for which he would be answerable, in case judgment were rendered against the indorser. Or to speak more- immediately on the facts before us, if a suit were instituted on the administration bond against the surety, the administrator is an incompetent witness for the defendant, his testimony going to exonerate himself from the payment of costs, for which he would be liable to the defendant, in case a recovery were had against him. But if the administrator were sued as in this cause, on his administration bond, for the claim now in litigation, according to the principle now contended for, the security would be a competent witness for the defendant, although by his own testimony, he absolves himself from all liability for the debt, or cause of action. If such be the law, it has neither reason nor justice to sustain it. In Miller vs. Falconer, 1 Campb. 251, an action on the case for negligence in running against plaintiff’s cart, with a dray. The plaintiff’s servant, who drove the cart, being called as a witness, was rejected by Lord Ellenborough, on the ground, “ that the witness certainly comes to discharge himself.” In Morish vs. Foote, 8 Taunt. 454, an action on the case for negligently driving a mail coach against the plaintiff’s wagon-horse, whereby it died, the plaintiff’s wagoner was rejected for incompetency, as being interested in the event of the suit, inasmuch as “ he would be placed in a state of security,” by a verdict against the defendant. If in these cases, the witnesses were incompetent, (without a particle of proof showing aught for which an action would lie against them) on the ground that the verdicts to be rendered would “ discharge them,” “ or place them in a state of security;” does not the same objection apply with still stronger force, to the competency of the witnesses, in the record before us. They are interested in the event of the suit, because the decree of the Chancellor, if in favor of the defendant, absolves them from all liability; if against the defendant, it is evidence against them when sued on their bond. Iglehart vs. Slate use of Mackubin, 2 Gill and Johns. 235. In Morton vs. Beall’s adm’r, 2 Harr. and Gill, 136, it was determined that the security in a replevin bond, is not a competent witness for the plaintiff in the action of replevin. If the point there adjudged, be in principle distinguishable from that now under consideration, the shade of distinction is so feint, as to be discernible only by minds peculiarly adapted to the investigation of legal subtilties. Rejecting the testimony of the witnesses in the administration bond, the enquiry presents itself, are there any other grounds upon which the decree of the Chancellor,, dismissing the appellant’s bill of complaint, can be sustained? That the answer of the defendant with the accompanying exhibits, are sufficient for that purpose, we entertaiii no doubt. In May, 1826, the bill is filed, charging the fraudulent misapplication of the effects of the deceased, and conversion thereof to the defendant’s own use, and praying that he may answer the allegations in the bill, and account with the complainant, &c. The defendant at the earliest moment that it could be done, appears in the Chancery Court, files his answer, denies the fraud with which he had been charged, makes a full disclosure of the manner in which he had settled the estate of the deceased, and files copies of the accounts which he had passed with the Orphans Court, and exhibits all the vouchers for which he had obtained credit; although no requisition for that purpose had been, made by the complainant. This promptitude and willingness in the defendant, to submit all his proceedings to the inspection of his adversary, and of the Chancellor, strongly repels the imputation of fraud, and entitles him to the favorable consideration of a Court of Equity. Nor do we think, under the circumstances of this case, the proof that he has, in his settlements with the Orphans Court, omitted to charge himself with $355 50, received as dividends on bank stock, and $471, the proceeds of a crop of tobacco from Thomas Norris, of Baltimore, and his charging in this account No. 19, the whole, instead of the one half of $385, the difference in value between the lots of negroes divided, such conclusive evidence of wilful misconduct on the part of the defendant, as to divest him of all claim to the favor and protection of a .Court of Chancery, and so to taint with perjury and fraud, Ms accounts and vouchers from the Orphans Court, as utterly to discredit them. The charge of $385, manifestly originated in mistake, as appears by the endorsement on the voucher, on which it is founded, and is an error into which he might very innocently have fallen. The failure to debit himself with the tobacco money received of Thomas Norris, appears also to have proceeded from carelessness or forgetfulness, as if fraud had been designed, he furnished the means of its detection, by charging in his account No. 21, against Edward Collinson’s estate $238 07, the one half of $477 34, the net proceeds of the tobacco, excluding the articles paid for by Norris, for Edward Collinson. Candor compels us to regard his omitting from his accounts, the $355 50 of bank dividends, as an unintentional act. In accounting as he did for the bank stock, those interested in the estate, were naturally led to an inquiry as to payment of dividends. That a fraudulent concealment was intended, is therefore not to be presumed.

In argument for the appellant, it has been contended, that the proceedings in the Orphans Courts, are not evidence of any thing for the appellee, and that he is bound to prove in this case, not only the actual payment of every claim for which he has received credit, but that such claims were justly due and owing from the intestate. After the solemn decisions made in this State, and reported in Scott, et ux. vs. Dorsey’s Ex’rs, 1 Harr. and Johns. 227. Spedden vs. The State use of Marshall, and ux. 3 Harr. and Johns. 251. Gist’s adm’r d. b. n. vs. Cockey and Fendall, 7 Harr. and Johns. 134, the doctrine insisted on, is no longer a subject for discussion in our courts. If any principle lias been conclusively settled by our decisions, it is, that the accounts settled in the Orphans Courts by executors, administrators, and guardians, are prima facie evidence, in all suits touching the matters therein contained, to which such executors, administrators or guardians, are parties; and that the onus probandi, rests on him, who seeks to impeach their correctness. The great controversy relative to such accounts, heretofore has been, not whether they were evidence at all, but whether they were not conclusive evidence.

The appellant’s counsel next urged that the “vouchers,” on which the credits in the Orphans Court were allowed, being produced, and it appearing upon the face of them, that though passed by the Orphans Court, previous to their payment, they were not proved in the manner required by our testamentary system, as a pre-requisite to their passage; that the defendant paid them in his own wrong, and is entitled to no allowance therefor. The inconsistency and injustice of such a position is so glaring, that it is scarcely necessary to say it is wholly untenable. The Orphans Courts are the tribunals invested by law, with' the power of passing claims against the estates of deceased persons, and the act of assembly of 1798, ch. 101, sub-ch. 8, sec. 22, declares, “ that no executor or administrator, shall discharge any claim against the deceased, (otherwise than at his own risk,) unless the same shall be passed by the Orphans Court, granting the administration, or unless the said claim be proved according to the following rules.” The irresistible inference is, that if an executor or administrator, bona fide, without any knowledge of its injustice, pay a claim, thus passed or proved, that the payment is not made at his risk. To a credit for such a payment, under such circumstances, he is not only prima facie entitled, but his right to it, cannot be controverted. It has also been insisted, that admitting the settlements made with the Orphans Court, are prima facie evidence, to sustain the credits for all payments made, in satisfaction of debts due third persons, yet they are no evidence to support an allowance made to the administrator for his own claim. This court can see nothing to warrant such a discrimination. In the act of 1798, ch. 101, sub-ch. 8, sec. 19, it is stated, “ that in no case shall an executor or administrator, be allowed to retain for his own claim against the deceased, unless the same be passed by the Orphans Court, and every such claim shall stand on equal footing with other claims of the same nature.” As full power is delegated to the Orphans Court, to allow an account of an executor or administrator, against the deceased, as if a like claim had been preferred by any other person. The claims of an administrator in this case, in common with all other claims against the de» ceased, being accredited to him in the settlement of his accounts with the Orphans Courts, such accounts must be regarded by us, as the acts of a court of competent jurisdiction, but whose proceedings being wholly ex-parte, are not conclusive, but rest on the principle that, “ omnia rite acta fuisse presumunter, donee probitur in contrarium.’T With the vouchers all before him, the appellant has not attempted to oiler any testimony, (although several commissions were issued, giving him that opportunity) to impeach or discredit any of them; but founds his objections, exclusively on suggestions arising on their inspection. This is a strong circumstance to repel the allegation of fraud, which has been urged against the appellee. He was guilty of no concealments with regard to the credits which have been allowed him, but furnished the Orphans Court with the same grounds for suspecting and rejecting his vouchers, which he so promptly afforded the appellant. It cannot be denied, that if it appear on the face of a voucher, that it is not a just claim against the deceased; it is as much the duty of a court of equity to reject it, as if the illegality of its-allowance were established by proof dehors. Looking to vouchers Nos. 13 and 16, independently of any proof in the cause, or admission of the counsel on record, it must be admitted that the Orphans Court erred, in allo wing the administrators credits for their whole amount; because they show debts due by Edward and John Collinson, and not by Edward alone. But it cannot be denied, that if the whole of those claims wore paid by John, after Edward’s death, that the Orphans Court would be justified in crediting John with a moiety of the amounts paid by him, upon the ground that Edward and John, being both principal debtors, if one pay the whole, he can either at law or in equity, call upon the other to contribute, and thus recover a moiety of what he had paid; but connecting the admission made by the appellant’s counsel, that the signatures to the notes, are in the hand-writing of Edward Collinson, the Court of Chancery were right in crediting the administrator with the whole payment made on those notes, it not appearing that Edward Collinson had any authority to sign the name of John; he is the debtor, being alone answerable for the payment of the notes. In thus considering the case, we put out of view all the testimony taken by the appellee to sustain his vouchers, upon the objections to its admissibility raised by the appellant, on the ground that the whole of it must be suppressed, as being given in answer to leading interrogatories,' and that William Collinson and Edward C. Harper, being securities in the administration bond, are incompetent witnesses. But it is insisted on in behalf of the appellants, that these claims, and also No. IS, were debts due by Edward and John Collinson, under a general partnership, subsisting between them, and that John is not entitled to claim a moiety of any particular partnership debt, he may pay; but his claim, if any, must be for the balance due on. a final settlement between the partners of the partnership concerns, or upon a full exhibition of all their company transactions, and thus ascertaining the general balance, to the payment whereof he is entitled. Upon what does the appellant rely for establishing the fact, that a general partnership existed between Edward and John Collinson. He has offered no evidence for that purpose, and he can insist on it only in two ways. First, that it is proved by the testimony taken by the defendant in support of his defence, or that the defendant had stated it in his answer, (though in a part not responsive to the bill.) If he relies upon the proof to which he has objected, he waives his objection to its competency; his whole equity is disproved, and he has nothing in the record to give him a moment’s standing before this court. If he relies upon the defendant’s answer, his predicament is equally deplorable. The whole equity of the bill is sworn away, and he has nothing to sustain it, which could produce any possible change in the decree of the Chancellor-. Upon whatever grounds, therefore, the appellant may choose to rest his ease, the vouchers Nos. 13 and 16 are sustained; but if he repudiates the answer and suppresses the appellee’s testimony, taken under the commissions, he is entitled to claim a deduction of one-half from voucher No. 18, amounting to $235 19, which being added to the one-half of $385, and the amount of bank dividends, and the price of the crop of tobacco of 1823, received by John Collinson, will make the sum of $ 1260 53, which amount is properly chargeable against the administrator, and being deducted from $4077 80, the amount of the estate over paid, as per auditor’s statement of the 31st May, 1828, will leave the estate overpaid by the sum of $2817 27. As to objection to vouchers Nos. 13 and 18, that the receipts thereon were signed by Nathaniel Chew of John, for Nathaniel Chew of Joseph, and that the appellee has adduced no proof to show an authority in the former to act for the latter, we have only to observe, that by allowing Credits for these claims, the Orphans Court have recognized the validity of those receipts, which recognition has been supported by the oath of the administrator, that he has paid the creditor; and that fortified too, by the possession and production of the note, and account, with the receipts thereon. Under such circumstances, and in the absence of all proof on the subject on the part of the appellant, we are not bound, and certainly feel no disposition to doubt the authority of the agent.

DECREE AFFIRMED.