Ludwig v. Blackinton ( 1844 )

The opinion of the Court was drawn up by

Shepley J.

This case comes before the Court by bills of exception taken by each party.

It appears, that the defendant on May 14, 1840, was appointed administratrix on the estate of Nathan Blackinton, her deceased husband. She returned an inventory on November 4, 1841, and settled an account on May 12, 1842, in which she charged herself with the amount of the estate, as appraised, and obtained an allowance for items charged to balance the account. Those items of charge were for funeral expenses, Dr. Rose’s bill in last sickness, taxes of deceased, a bill for legal advice and assistance and for attending Probate Courts; and an allowance was made by the Judge of Probate to herself. The intestate was indebted to the plaintiff; and this suit was commenced to recover the amount admitted to be due.

The defence was, that the estate was insolvent, and that it was so represented; that she had fully administered the same; and had accounted for all the assets, which had come to her hands. She relied upon the provisions of the statute c. 109, <§> 4, as a perfect defence. No commissioners of insolvency had been appointed.

The third section of that statute provides, that the Judge of Probate shall appoint commissioners, when the estate will probably be insufficient for • the payment of the debts, except as provided.in the fourth section; which.is in these words. “But if the funds shall not be sufficient to extend beyond the payment of the expenses of the funeral and administrator, and the allowance to the widow and children as aforesaid, it shall not be necessary to appoint commissioners; and the administrator shall be exonerated from the payment of any claim of any subsequent class.’’

It is only when the funds are not sufficient to extend beyond the payment of those designated claims, that it is not necessary to appoint” commissioners; and then only is the administrator exonerated from the payment of any claim of a subsequent class. In this case it appears by the account settled, that the funds did extend further, and that the administratrix paid certain expenses of the last sickness and taxes due from the intestate.

As the defendant was appointed administratix before the Rev. Stat. were in force, it is contended, that she may be protected by the provisions of the act of March 15, 1838, c. 322. It is not perceived, that such could be the result, if that statute were applicable to the case, for it discharged the administrator only, when the amount of the estate should be absorbed in the payment of bills of the last sickness, the funeral expenses and the allowance to the widow; and the amount was not thus absorbed in this case by the sum paid for taxes. That statute however was repealed, and the' Rev. Stat. were in force, before the inventory ill this case was1 returned; and the administratrix should account for the property contained in it according to existing laws.

What should be the construction or effect of those statutes, when a case is presented within their provisions, it is not now necessary to decide.

The plaintiff, being entitled to judgment, will, by the provisions of the statute, c. 120, § 4, be entitled to an execution against the goods and estate of the intestate for the amount of the debt and to another against the defendant for the amount of the costs. The exceptions taken by the defendant must be overruled, and those taken by the plaintiff sustained. And as the debt is admitted to be due, judgment is to be entered in this Court for the amount, and executions are to be issued accordingly.