Coward v. State ex rel. Worrel , 7 G. & J. 475 ( 1836 )

Archer, Judge,

delivered the opinion of the court.

After a careful examination of the acts of Assembly in relation to the duties and obligations of executors and administrators, in regard to the distribution of estates; we have brought our minds to the conclusion, that it is their duty within thirteen months to pay the creditors ; and any surplus they may have on hand after the lapse of that time, to divide among the distributees according to law.

The act of 1798, ch. 101, sub ch. 8, sec. 14, makes it their duty within thirteen months to pay the creditors; and the 15 sec. of the same sub chapter declares, that if they have distributed as thereinafter directed, (that is, if they have paid over to the distributees, as directed by sub ch. 10, sec. 10, and sub ch. 11. sec. 1,) they shall not thereafter be liable to any creditor of the estate for a debt not known or notified to them, if they have given the notice required by sub ch. 8, sec. 13.

It is declared by sub ch. 11, sec. 1, at what time they are to distribute among the representatives. This is announced to be when the debts are paid; and we have seen the debts are to be paid within thirteen months. But it is said, the executor has fifteen months to settle his final account, and therefore it is urged the bond is not forfeited until the lapse of fifteen months.

It was proper, a time should be limited for rendering a final account, that all interested in the estate might see the particulars of its adjustment; and that the executor should close his trust with the tribunal before whom the law had directed him to account. But this cannot control his prior responsibility to the distributees, more than it could to the creditors. Even if it appear by the first account of the executor, that all the debts are paid, by sub ch. 10, sec. 10, it is made his duty to distribute among the representatives. Such first account might be passed before the lapse of fifteen months, and in such a case the responsibility would be clear, and just as certain as that which would arise in relation to the creditors, if he failed to distribute among them within thirteen months. Can the withholding the passage of such final account exempt him from responsibility until the lapse of fifteen months ? we think not. We think his duty is clear and well defined by a just construction of sub ch. 8, sec. 15, and sub ch. 11, sec, 1, to make distribution among the representatives whenever the debts are paid. This is to be accomplished within thirteen months. And here the suit was after the lapse of that time. Besides the pleadings in this case set up no debt due, except one which the verdict declares has no existence.

judgment affirmed.