State ex rel. Blackistone v. Blackistone , 2 H. & G. 139 ( 1828 )

Dorset, J.

delivered ihe opinion of the Court. The only-question which we are called on to consider is, were the court below right, under the circumstances presented by the record in this case, in determining that the plea y?»is darrein continuance, simply stating that the letters testamentary had been revoked, was a bar to the plaintiff’s right of recovery?

The letters testamentary were granted in February 1821, the present action was commenced in February 1824, and the revocation of the letters took place sometime between the months of March and August 1827 — upon what grounds, does not appear. The plea does not set forth the appointment of an administrator de bonis non, much less, that agreeably to the acts of assembly in such case provided, all the unadministered estate of the deceased has, under the order of the orphans court, been delivered over to such substituted administrator. Under such circumstances, we think the court erred in overruling the demurrer to the defendant’s plea. At the time of the institution of the suit, the equitable plaintiff had a good cause of action, the bond of the defendant had become forfeited by his failure to distribute the unadministered effects of the deceased, as required by law. Should he then, by refusing to settle his accounts with the orphans court, or to give additional security when called on for that purpose, (thus adding default to default,} be permitted, after involving the equitable plaintiff in litigation for three years, to turn him out of court, burthened, not only with his own costs, but with the costs of the defendant also? No principle of law enjoins it; reason and justice forbid it. If the doctrine were' sanctioned, it would be in the power of executors or administrators, dishonestly disposed, to withhold the effects of the deceased from the payment of his debts, suffer themselves to be sued by the creditors; and after exhausting all the delay and. indulgence which the law extends to them, by their own delinquency to cause a revocation of the letters testamentary or of administration, and thus dismiss the creditors from court, mulcted not only with all their costs, rightfully incurred in the prosecution of their just claims, but with- the costs too of the defendant, the defaulter. And they must then wait until a new administrator be appointed; and the estate of the deceased recovered, by suits on the old testamentary or adhinislration bond, or otherwise; when perhaps, this now administrator, encouraged by the successful devices and rewarded elinquencies of his predecessor, may be tempted to tread in his footsteps, to the ruin of the creditors and distributees. For such an anomaly in the law, such an outrage upon justice, as would he produced by the recognition of the doctrine contended for, no satisfactory reason can be assigned. By establishing a contrary doctrine, no injustice, no inconvenience or hardship, of which he has a right to complain, will be done to the delinquent executor or administrator. lie is deprived of no honest defence which should be made to the action. If no assets have come to his hands — if he has administered them — if preferred creditors will consume the whole estate — if he has satisfied the claim, or on any ground it be unfounded in law or fact, it maybe pleaded in bar of the action. If there bo other debts outstanding or paid, or if the property of the deceased has, under the order of the orphans court, been delivered over to a new administrator, it may he pleaded, not as a complete bar to any recovery, but it will confine the plaintiff to nominal damages, or such other damages as a court, and jury, under all the circumstances of tho case, shall think him entitled to recover. But if, as in the present case, no new administrator has been appointed, judgment should be rendered as if the letters testamentary had not been revoked.

.Archer, ,T. dissented.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.