Taylor v. Sewall , 1879 Me. LEXIS 27 ( 1879 )

Danforth, J.

This is a petition by an administrator de bonis non, asking a review of a judgment obtained, as he alleges, through fraud and collusion, against his predecessor.

In Elwell v. Sylvester, 27 Maine, 536, it was held that a review can be granted only upon petition of a party to the judgment, or some one representing his interest. In this case the petitioner is neither ; certainly not a party. Nor does he represent the interests of the party, but may be in a position antagonistic. True, he is the successor of the former administrator, but derives no right to the property to be administered upon from or through him, but takes it directly from the decedent. He is “ appointed to administer upon that portion of the estate of a deceased person not before administered upon.” 2 Bed. on Wills, 89. He may even maintain an action against his predecessor, as his title dates from the death of the testator or intestate. Id. 91.

There can therefore be no privity between them, nor can the one in any sense be said to represent the other. Nowell v. Nowell, 2 Maine, 75-80. Grant v. Chamberlain, 4 Mass. 611. Freeman on Judgments, § 163.

This principle of the common law seems to be conceded in the argument, but it is contended that it has been changed by the provisions found in B. S., c. 87, §§ 4, 5, 6.

If this statute is to have the effect claimed for it; if by it the administrator de bonis non is, as regards the judgment, made a privy with his predecessor, the result must be that on the principal cause alleged for a review, that of collusion, the petition must fail. The party himself could hardly take advantage of his own wrong, and his privies would be equally bound with him.

But such is not the effect of the statute. The remedies there provided, after judgment obtained, are scire facias, an action of debt and a writ of error. Neither of these changes the title to the property involved. The administrator de bonis non still claims under the decedent, takes his title and not that of his own predecessor. In neither of these remedies can the original judgment, or execution issued thereon, be satisfied by a levy upon the property in the hands of the new administrator. It can only be the foundation for a new process, under which, for the reason that the present petitioner is not a party or privy, he may set up the alleged fraud and collusion as a defense. If judgment is obtained under a proceeding in debt, or scire facias, then to such the new administrator becomes a party, but only when the original judgment becomes merged in the new one.

It is true that, under a writ of error, the origina] judgment is not merged in a new one, but is either affirmed or reversed. If affirmed, it stands as before, and if unsatisfied, these same remedies are open to the plaintiff; if reversed, he must resort to such legal remedies as are prescribed for recovering his original claim.

Thus, while under these remedies supplied by the statute the administrator de bonis non may bo brought into privity with the claim established by the original judgment, yet it is not with the judgment itself, but another in which that is merged after due process of law.

It is a very significant fact as bearing upon this question that, in this enumeration of remedies provided for the administrator de bonis non, that of a petition for, or a writ of review is not mentioned. As the statute is in derogation of the common law, and cannot be extended beyond the meaning derived from a fair construction of its terms, this would seem to be conclusive. This appears to be in accordance with the principle established in Paine v. McIntire, 32 Maine, 131. When that decision was made the statute provided for all the remedies now authorized except that of debt, and it was there held that debt would not lie; although the result must be substantially the same in scire facias and debt, yet, as the latter was not specifically mentioned, the remedy must be under the former only. Much less can wo, by construction, extend the statute so as to cover review, a remedy so entirely different in its procedure and results from any authorized by its terms.

Exceptions sustained.

Appleton, C. J., Virgin, Peters and Libbey, JJ., concurred.