De Diemar v. Van Wagenen ( 1811 )

Per Curiam.

The release of Pomeroy’s debt by the plaintiff Cornelia, as administratrix, is a good defence in this action. It appears by the.-covenant, that she took out letters of administration in England, by agreement with the.other parties to the covenant, for the express and sole purpose of collecting Pomeroy’s debt i and in consideration of her doing this, she received a release and indemnity from the other parties. They were only to pay her the distributive share of her father’s estate, in case Pomeroy should neglect or refuse to account and pay his debt. By releasing that debt, "she has disabled herself from a remedy at law under the covenant. The breach contemplated by_ the parties has not occurred. The old and strict rule of law is, that an administrator cannot release a debt without being-responsible for it; and though this rule has been relaxed in equity, as between the administrator or executor and the legatees or next of kin, (and, perhaps, the same relaxation ought to take place at law, if a court of law should take cognisance of claims between such parties,) yet here the plaintiff has not fulfilled the condition precedent to a right of action upon this covenant. If the whole scope and intent of the agreement be compared and taken together, its meaning appears evidently to be, that the. plaintiff Cornelia was to invest herself with, the power of an administratrix, for a specific purpose, which was not that, she should exercise her discretion in collecting, compounding or releasing the debt of Pomeroy. It was merely that she should he vested with legal authority to demand and receive the debt. The administrators here never meant that she should assume or exercise any other or further power. To entitle herself to a remedy at law under this covenant, she was bound to execute this trust upon strict legal principles. By compounding the debt, she has taken it to herself, and judgment must be rendered for the defendant. judgment for the defendant.