Howell v. Blodgett. In the Matter of the administrators of Maloney, deceased, 1 Redf. 323

The Surrogate. — This is not a case contemplated by the statute of 1847,

chapter 80. It is rather a question of contract to be settled by evidence, than a case of compromising or compounding a debt. Although the terms of the act are general and' comprehensive, we are not at liberty-to shut our eyes to the facts and circumstances surrounding it and which occasioned its passage. We must consider, in its construction, what the old law was, the evil under it, and the remedy intended to be applied by the Legislature.

Prior to its enactment, executors and administrators could not compound and compromise the debts due their testators or intestates, which were doubtful or bad, without being liable for the loss, personally. It was to remedy this evil that the act was passed, and not to provide a new tribunal for the construction of contracts and the liquidation of unsettled accounts with' solvent debtors. Any other construction of the statute would be likely to accumulate a large and inconvenient addition of business in courts not originally constructed for the trial of issues.

And although a result might be arrived at in bad or doubtful unliquidated claims, still strict investigation upon legal evidence would be necessary in cases of solvent demands. Admitting the court to possess jurisdiction, which it disbelieves, still there would be an indelicacy, if not impropriety, in the case of solvent demands, for the court to step in between the administrators and the persons entitled to the estate, in advance of a final settlement.