Bledsoe v. Beiler

Willie, Chief Justice.

At the time the claims of the appellee were presented for allowance, the administrator of Hollingsworth had not been discharged, though his application for final settlement was on file. Hothing in our statutes forbids the presentation of claims up to the time an order for partition and distribution has been made. R. S., Art. 2035. The very fact that an allowance of claims is expressly fordidden after that time, implies that previously thereto it is lawful and proper to present them. There is very good reason for this limitation of the statute. After the order of partition is made, the property of the estate then in the hands of the administrator can be appropriated, so far as creditors are concerned, only to the payment of debts already allowed, and the expenses of administration. R. S., Art. 2107.

The remainder not thus appropriated has been decreed by the court to belong to the distributees of the estate, and of this the administrator can make no other disposition. Creditors, whose claims have not been approved or established, must look for payment to the distributees, who received the property that would have been liable to their debts whilst in the hands of the administrator had their claims been presented in time. The estate is as effectually closed, so far as it concerns creditors not previously made parties to the administration, as if it had been so declared by an order of court.

But until partition does take place there is no reason why any just debt may not be enforced against the administrator. He is still administering the estate in trust for the payment of all its debts, and not for certain creditors alone whose debts have already been allowed. If there is any property on hand the creditors whose claims have not already been allowed, have the right to see that it is used to pay their debts before passing to the distributees.

Ho order of partition had been made in this case when the claims were presented, and the estate was still open for the benefit of all creditors. But the administrator contends that as there was no property to distribute the estate was in the same condition as if a distribution had already been made. It was without means and therefore without responsibility for debts. It is true the administrator reported nothing on hand at the time he applied for a discharge; and doubtless such was his opinion, and it may have been correct. But it appears that two thousand acres of land had been inventoried and had not been disposed of by the administrator. It was stated that it had been sold by the surviving wife and sole devisee of Hollingsworth. But whether the title of the estate in the land and the right of this plaintiff to subject it to his claims was therebv destroyed, was a question which the plaintiff had a right to have tested, and in order to do so was authorized to put himself properly upon the record, as an approved or established creditor of the estate. At any rate the statute had opened the estate for the presentation of such claims, and had fixed a time when it would be too late for their allowance. As that time had not arrived there was no express prohibition against their being presented, and not seeing any reason why the plaintiff should be cut off from his remedy against the estate, we are of opinion that the presentation was in due time. This leads us to the conclusion that the affidavit for continuance presented no matter whatever that should have delayed a trial of the cause, and the motion to continue was properly overruled.

We do not think that under the evidence the measure of damages was the amount due upon the note and judgment, together with the costs of the suit in which the judgment was obtained; but the value to the plaintiff of the lien upon the land which had been lost by the failure of Hollingsworth’s title. Hollingsworth had warranted his title to the land and to the notes. He had agreed to pay Beiler whatever loss he might incur by reason of the failure of his title in either of these respects. His obligation had this extent and no more. The amount of this loss in case of the insolvency of the maker of either note was what the land would have produced at foreclosure sale towards the extinguishment of the amount due upon that note, provided it sold for less than a sum sufficient to pay the note in full. If it would have sold for enough or more than enough for this purpose, the measure of damages was the amount of the debt due upon the note. There was no allegation or proof as to what the land would have brought at foreclosure sale; nor of its cash market value. Had the latter been alleged andproved, the court might have presumed that it would have brought this amount at forced sale. But as it was not, the court could not assume that the land was worth the amount of the debt due upon the notes, and there was nothing before the court upon which to determine what amount of judgment to render for the plaintiff. For this reason the judgment will have to be reversed and the cause remanded for a new trial according to the principles announced in this opinion.

In remanding the cause it is proper for us to say that we do not think that in any event the costs of the suit brought by Offield against Berry. Beiler and Wyatt should enter into the estimate of the damages which may be recovered by the plaintiff in this cause. They did not result solely or necessarily from the failure of Hollingsworth’s title to the land. They were incurred in a suit brought as well for the purpose of collecting the note by ordinary execution against the maker and endorser, as by sale of the land in satisfaction of the lien. Neither Hollingsworth’s administrator nor the parties entitled to his estate had notice of the suit, nor opportunity to defend his title. The action therefore was of no avail in determining title as between Wyatt and Hollingsworth’s estate. The judgment was of no service except to determine the amount due upon the note from Berry and Beiler, the maker and endorser, and to obtain an ordinary execution against them for the amount thus ascertained, and there is no reason why the costs of such a procedure should be charged to Hollingsworth’s estate. It had nothing to do with that question, and its decision one way or another would not have affected the liability of the estate to make good the loss caused to Beiler by a failure of Hollingsworth’s title to the land.

The other questions raised are either unimportant or not raised by proper assignments of error. For the error mentioned the judgment is reversed and the cause remanded.

Reversed and Remanded.

[Opinion delivered June 15, 1886.]