Bridges v. Maxwell

HANDY, J.,

delivered tbe opinion of the court.

This action was brought in the name of the judge of probate, for the use of certain named persons, as heirs of Duncan IT. McIntyre, deceased, to recover upon the administration bond executed by Thomas Gr. McIntyre, Adeline C. McIntyre, and Peter McIntyre, administrators of his estate. The action was brought against the plaintiffs in error, as executors of one of the sureties to that bond, to recover the value of certain slaves and other property of the estate alleged to have been removed by the administrators out of the limits of this State, contrary to law.

The defendants below answered, and set up the following grounds of defence: 1st. That Adeline C. McIntyre,, the widow of Duncan, and then living in the county where the action was brought, was equally interested in the subject-matter of the suit with the relators, and should have joined with them in the action; and relying on the non-joinder as if it had been pleaded. 2d. Denying that all of the slaves and other property set out in the declaration were removed as therein alleged. 3d. Denying that the property was of the value charged. 4th. Alleging that $18,050 was the full value of the property removed, and that it was sold for that sum, and that the administrators of Duncan II. McIntyre charged themselves with that sum in their annual account with the Probate Court, at April term, 1846, which was allowed by that court at January term, 1847, whereby that sum was appropriated to the benefit of the re-lators, by paying therewith debts of -the estate of McIntyre, and this is set up as a payment to the relators of the full value of all the property removed. To all of this the plaintiff demurred, except that denying the value of the property removed as alleged in the declaration; and upon that the plaintiff took issue.

The questions presented by this demurrer are the first subjects to be considered.

First. It is insisted that the non-joinder of Mrs. McIntyre, the widow of the intestate, was a fatal defect in the declaration or complaint; that the statute under which the action was brought, intended that but one action should be brought by all the parties united claiming under it, and not by a part of them for their proportions ; and that the widow, being a party entitled to a share of the estate, was a party interested in the subject-matter of the suit; and that, although the statute confers the right of action in such a case upon the “heirs,” yet it intended to embrace all those who were entitled to portions of the estate. But we do not consider this construction authorized by the words of the statute. The remedy is specially given to the “heirs of the testator or intestate.” The widow could not with any propriety be said to be included in the term “heirs,” a well-defined legal class of persons ; and the legislature must be presumed to have used the term in its received import. The power to give the remedy to any class of persons connected with the estate resided in the legislature. It ivas matter of discretion upon whom it should be conferred. It could not be given to the representatives of the personal estate, for they were the very persons against whom it was to be exercised. It was not given to the distributees as such, but it was deemed proper to give it to the persons who were heirs, not that that term was applicable to those interested in the personal estate, but that this right growing out of the personalty, should be conferred upon those who were the legal heirs of the deceased. What induced the legislature to give the remedy to this particular class of persons, it is not important to inquire, inasmuch as those to whom it is given are designated in plain legal terms. But it is plain that there are no equitable considerations which should have caused the legislature to extend it to her. For her legal rights in the estate, apart from this provision, are not interfered with, and she has no right to complain, that the legislature did not think fit to include her in a special remedy provided as a means of enforcing a rule of high public policy. It is, however, not improbable that the benefit of the statute was not extended to her, for the reason that her right to take the administration having precedence of others, her position as administratrix would give her the power to violate the law; and considering the probability of widows taking administration of their deceased husbands’ estates, it was not deemed proper to embrace her within the provisions of the statute. But whatever may have been the reason, it is clear that she cannot be included in the words, without doing violence to their plain legal import.

Second. The denial of the answer, that all the property set out in the declaration was removed, &c., is clearly not a sufficient answer to the allegation in the declaration. It was not necessary, to maintain i the action, that all the property should have been removed ; for the defendants were liable for the removal of a part of it, and the plaintiff entitled to recover accordingly. Yet, if issue had been taken upon this ground of defence, the plaintiff would have failed, though he had proved that every article of property had been removed but one. It was, therefore, not an answer to the whole declaration, and, though it were true, the plaintiff might have been entitled to recover.

Third. The question presented by the next ground of defence is, whether the action could be maintained, if the administrators removed the property of the estate out of this State, and sold it for its full value, and afterwards accounted with the Probate Court for the same, and applied it to the payment of the debts of the intestate ? This is relied on as a discharge of the plaintiff’s demand; and the question is, whether it can have suGh'an effect under a just construction of the statute? or, in other words, whether, if the administrators removed the property out of the State and sold it, and afterwards accounted for its value to the Probate Court, by applying its proceeds in the same manner in which they would have been appropriated if the property had been sold here under the order of that court, the heirs could maintain this action under the statute ?

The provisions of the statute under consideration are, -first, a very emphatic prohibition against any executor, administrator, &c., under any pretence whatsoever, from removing any property whatsoever belonging to the estate with which he is charged. A rule of public policy is thus declared, for the manifest purpose of securing to the courts of our own State, to whom the administration of deceased persons’ estates is committed, the full exercise of their jurisdiction, to prevent frauds upon that jurisdiction, and to insure to those interested in the estate the full benefit of it. Then immediately follows the section for a violation of the rule, which is, that, in case of any such removal by an executor, &c., it shall be the duty of the judge of probate having jurisdiction of the estate, to institute suit forthwith, “for the use of the heirs of the testator or intestate,” upon the bond of the executor, &c.; “ and the jury trying such cause shall, on satisfactory evidence of the removal of the property as aforesaid, render a verdict against the defendant or defendants, for the full value thereof, and such other damages as the parties interested may have sustained.” Hutch. Dig. 665, § 93.

It is admitted, on the part of the plaintiffs in error, and it is evident, that this is a penal statute. And it is manifest that it was intended to give to the heirs of the deceased a specific right against an administrator, who had removed property belonging to the estate out of this State, as a punishment against him for the commission of an act, denounced by the statute, in gross violation of his duty, in contempt of law, and dangerous to the rights of those entitled to tho benefit of the property. This policy does not look to the actual damage occasioned to the parties interested in the estate, nor does it proceed upon tbe principle of allowing compensation for the injury those parties may sustain in consequence of the illegal removal of the property from this State. On the contrary, in order to prevent the violation of the law, it gives to the heirs the specific right to recover, at least, “ the full value of the property” at all events, and regardless of whether any damage was occasioned to the parties interested in the estate or not by the prohibited act; and, in addition to that, the right to recover such other actual damages as the parties interested may have sustained in consequence of it. The reason of the policy, then, is not compensation for the injury to the parties interested, but punishment to the parties violating the law. Hence, the principle relied on in the defence cannot be recognized as a sound one, that the relators of the plaintiff have suffered no injury by the removal, because the property has been applied substantially in the same way that it would have gone had it not been removed; and, as they would have received no benefit of it, had it not been removed, but been administered here, they have sustained no injury by the removal.

Tho statute makes it the duty of the judge of probate forthwith, after the removal, to institute the suit for the use of the heirs; and it fixes the minimum amount of recovery, as a positive and specific right, arising upon the violation of law. That right is independent of the matter of administration in the Probate Court, and cannot be defeated or impaired by any act which that court may do in the exercise of its appropriate functions of administration, because it is a matter wholly beyond the control of that court.

If this were not true, an action properly commenced for a violation of the statute, might be wholly defeated as to the recovery of any damages, by a subsequent accounting of the administrator with the Probate Court, showing that he had substantially applied the property to the payment of debts of the deceased which were sufficient to exhaust it, and therefore that the distributees had sustained no injury. But it is manifest that this view is neither sustained by the letter nor the spirit of the statute. For, according to this construction, no further right is conferred by the statute than what existed without it, except the mere right to bring the action “forthwith” upon the removal, subject to be rendered fruitless or entirely defeated by the accounting of the administrator, showing that the property had really been applied to the payment of the debts of the deceased. With the exception of this mere formal and problematical right, the statute, according to the construction contended for, adds nothing to the remedies already existing against the administrator; it places him merely in the condition of an executor de son tort, who may show an application of assets to the payment of debts, or it operates as a mere stimulus to cause him to account for his disposition of the property. But the statute most obviously intended to confer a right in addition to that of immediate suit, and superadded to those already existing against the administrator, a substantive' and fixed right, apart from any matter of his administration of the estate, and with which the Probate Court could not interfere, either directly, or by means of its action upon his accounts, — a penalty for the violation of law, to accrue to the heirs of the intestate, at all events, to the amount of the full value of the property removed. The right conferred by the statute is plain, and the reason appears to be evident; and it is not for us to say that its provisions may not be enforced because its effect is inequitable in giving a right to parties to recover when they have sustained no injury. We have no power to introduce modifications to the plain provisions of a statute on the ground that the right conferred is contrary to justice.

We, therefore, think there was no error in sustaining the demurrer, and for the same reasons, that there was no error in excluding from the jury the evidence offered by the defendants to show that the administrators in their account with the Probate Court had accounted for the proceeds of the sale of the property., and applied it to the payment of the debts of the estate.

The next error insisted upon is, that the plaintiff failed to read in evidence to the jury, the administration bond sued upon.

That was unnecessary. The matters of defence set up in the answer were in the nature of pleas of confession and avoidance, which virtually admitted the execution of the bond, but denied that there was any breach of its condition, or that the plaintiff’s relators were entitled to recover, by reason of the matters of defence set up. .Under the general rules of pleading, it was therefore unnecessary to offer the bond in evidence. But the tenth section of the Statute of 1850, in relation to pleadings, — the bond not being denied by the answer, — must be taken as admitted.

Again, it is urged in support of the motion, that the damages assessed by the jury were excessive. The verdict was for the plaintiff for $25,797, with the statement that the jury deducted one-fifth of the value of the property for the share of the widow, — ■ from which it appears that the jury estimated the property at about the value of $30,956. This appears to be sustained by the evidence, taking into consideration the number of the slaves, which were upwards of fifty, and their value at the time of the removal, as shown by the testimony.

It remains only to consider whether the court erred in refusing to allow the defendants, after the demurrer was sustained, to file a plea in abatement, setting up the non-joinder of Adeline C. McIntyre, as one of the relators in the action. Under the view we have taken of her right to become a party to the suit, the refusal of the court to permit the plea to be filed could work no injury to her, even if it was proper to offer such a plea, after an answer' amounting to a plea in bar had been- filed. Had it been permitted to be filed it would have been unavailing, and the rejection of it was not an error to her prejudice.’

Upon consideration of the whole case, we are of opinion that the judgment is correct; and it must be affirmed. .