Kennedy v. Cogswell , 1 Colo. L. Rep. 110 ( 1880 )

Bradley, J.

(After stating the facts.)—This argument is very ingenious, but it is not sound. The defendants not only failed to prove the truth of their plea, but, on the contrary, the complainants, by the executor’s own sworn accounts, filed in the probate office, proved, so far as such proof could go, that the plea was untrue. These accounts show that the executor had not sufficient personal estate in his hands to pay one-third of the complainant’s claim alone. So that according to the strictest rules of equity pleading the complainants were entitled to a decree in their favor. The executor may have had sufficient assets in fact; but he did not see fit to disclose them, or prove that he had them. His admission that he had assets may be taken against him for the purpose of charging him with a liability, but it cannot serve him as evidence to prove the truth of his plea. His mere allegation cannot be received as proof of his own truth where the fact is directly in issue, and the burden of proof is on him.

Since, then, the complainants were entitled to a decree, the question is, what decree? If a defendant plead a false plea, and it be so found, what is next to be done? Is it to be merely overruled, and an order made that he answer further, as in case of overruling a demurrer, or of overruling a plea for insufficiency? This is not the usual course. Having put the plaintiff to the trouble and delay of an issue, the defendant cannot, after it is found against him, claim the right to file an answer; although, if the complainant desires a discovery which the plea sought to avoid, he may undoubtedly insist upon it. But that is the complainant’s right, not the defendant’s. Lord Hardwicke said: “All pleas must suggest a fact; it must go to a hearing; and if the party does not prove that fact which is necessary to support the plea, the plaintiff is not to lose the benefit of his discovery, but the court may direct an examination on interrogatories in order to supply that.” Brownsword v. Edwards, 2 Ves., 247. This statement is adopted by Lord Redesdale and by Mr. Beames and all subsequent writers on equity pleading. Mitford Pleadings (4th ed.), 302; Beames on Pleas in Equity, 318; Story Eq. Plead., Sec. 697. If the plea is found to be false, it would seem to be just and equitable that the case should stand as if the defendant had admitted the allegations of the plaintiff Sir Thomas Plumer states the matter thus: “Supposing a plea to be correct in form, but proved false, it seems to be conceived, that the course at the hearing is to take it up just as if there was no answer. That is not correct. Upon a plea found false, the plaintiff is entitled to a decree; and if a discovery is wanted, the defendant is ordered to be examined upon interrogatories.” Wood v. Strictland, 2 V. and B., 158. Chancellor Walworth, in a case before him, where the defendant produced no evidence to establish the truth of his plea, said: “Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true, the bill must be dismissed. But if the plea is untrue, the complainant will be entitled to a decree against the defendant in the same manner as if the several matters charged in the bill had been confessed or admitted. If a discovery is necessary to enable the complainant to obtain the relief sought for by his bill, the defendant cannot evade answering by putting in a plea which turns out to be false. In such a case, after the plea is overruled as false, the complainant may have an order that the defendant be examined on interrogatories before a master as to the several matters in relation to which a discovery was sought by the bill.” Dows v. McMichael, 2 Paige, 345.

In the present case, the complainants did not see fit to insist on a further discovery. Being entitled to a decree pro confesso as to the principal charge of their bill, and the executor having admitted sufficient assets to pay the debts of the estate, they were content to take a decree against him for the amount of the debt. The executor’s admission, as we have before said, was a good ground for charging him with the liability, though he could not urge it as evidence in support of his plea. And as an admission of assets renders the executor personally liable, a decree against him was proper. The usual decree on a creditor’s bill is for" an account; but, as said by Vice Chancellor Wigram in a similar case, “The reason for and the principle of the usual form of decree have no application where assets are admitted, for the executor thereby makes himself liable to the payment of the debt. In such a case, the other creditors cannot be prejudiced by a decree for the payment of the plaintiff’s debt; and the object of the special form of the decree in a creditor’s suit fails. I am satisfied that in this case there ought to be a decree for immediate payment.” Wingate v. Field, 2 Hare, 211, 212; Story Eq. Jur., Sec. 548 a. Had it been contended, or shown, in this case, that the estate of the testator was insolvent, so as to require a pro rata payment among all the creditors, there might have been room for the objection that the ordinary decree was not made. But no such point is made in the case, and we think that the decree was properly rendered for the debt of the complainants alone.

As to the objection that the bill was not formally dismissed as to the devisees, we do not think it can be raised here by the executor, who alone appealed from the decree.

The point taken by the appellant, that the court below, sitting as a court of equity, had no jurisdiction of the case, is not well taken. The authorities are abundant and well settled that a creditor of a deceased person has a right to go into a court of equity for a discovery of assets, and the payment of his debt. When there, he will not be turned back to a court of law to establish the validity of his claim. The court being in rightful possession of the cause for a discovery' and account will proceed to a final decree upon all the merits. Thompson v. Brown, 4 Johns Ch., 630; 1 Story Eq. Jur., Sec. 546; 2 Williams, on Ex’rs, 1718, 1719. The allegations of the bill in this case were sufficient to give the court jurisdiction; and the accounts of the executor show that the complainants had reasonable cause for making those allegations. They went into the court for the discovery of assets; and the object of the bill was attained by the admission of the executor that he had sufficient assets. It would be strange indeed if that admission could be made a ground for depriving the court of its jurisdiction. If it could, the discovery, by proof, as assets concealed by the executor, would have the same effect; and the result would be that a bill in equity could be defeated by proofs showing that there was good ground for filing it.

In conclusion we will state that we have found nothing in the local law of the District of Columbia, or the jurisdiction of the probate court, that is, of the Supreme Court of the district acting as such, inconsistent with the views expressed.

Decree affirmed.