Davis, Adm'r of Nasworthy Hunter, v. Yerby, Executrix of William Yerby, 1 Miss. (S. & M. Ch.) 508

Chancellor. The complainant seeks by his bill to set up two claims, which he desires to enforce against the defendant; one in his private capacity, as a creditor of the estate of Henry Hunter, for money paid by him as administrator de bonis non of that estate, over and above the assets of the estate that came into his hands as such administrator ; he having discharged more of the debts of that estate than there were assets in his hands to be administered.

The other claim which he seeks to establish, is, in his character of administrator of the estate of Nasworthy Hunter, to whose estate he alleges the estate of Henry Hunter is now indebted. The hill states, that Thomas Hunter is the present administrator of Henry Hunter, deceased, but does not make him a party to the cause.

The defendant, as executrix of her deceased husband, denies all the allegations of the complainant’s bill; asserts that her testator fully discharged his duties as administrator of Henry Hunter; and, while she insists upon the judgment in the suit at law brought by the administrator of Henry Hunter against her, in bar of the claims here attempted to be set up, she also relies upon her demurrer to the bill, which she has made part of her answer. Neither party has taken any proof: I am, therefore, compelléd to decide the cause from the facts, as they are developed by the pleadings.

It is clear, that Davis has no right to call for an account or a settlement from the defendant, except for'the purpose and to the extent of making available the two claims which he holds, one in his own right, and the other as administrator of Nasworthy Hunter. But can he do this ? can he press either of these claims to a settlement, without making the present administrator of Henry Hunter a party? What is he seeking to do ?

It is, so far as his cláim against the estate of Henry Hunter is concernedr to coerce out of the defendant a debt due to him by that estate ; and he is endeavoring to do so, without making the representative of that estate a party to the suit; and this, too, without there being any allegation of the insolvency of that estate, or that it has been finally settled. This is contrary to the rule upon that subject. The present administrator of Henry Hunter should have been made a party.

If, however, this were the only objection to the complainant’s bill, it would not be dismissed, but would be directed to stand over for proper parties. Passing by, then, this objection, I proceed to examine the case on its merits.

The bill charges, that while the defendant’s testator administered the estate of Henry Hunter, he was guilty of gross neglect and mismanagement of that estate, whereby large sums of money were completely lost to it: that he sold property of the estate, and took insufficient security for the purchase-money, by means of which the debts were rendered worthless, and a loss to the estate, I can have no doubt, that if an administrator acts in bad faith in taking security which proved insufficient, he would be held liable : his liability, however, would extend no further.

So, if he were guilty of any gross negligence or wilful default in collecting claims, by which they were lost, he would be chargeable, but not otherwise. The bill, in this case, while it is full of general charges of maladministration of the estate, makes no specific and definite charges on the subject. There is the general charge, of wasting and embezzling ; but this is insufficient.

In 1 Molloy, 469, the question of charging an executor with default or negligence, is critically examined by the Irish Chancellor, who states the result in this general rule, that, in order to ground a direction to charge an executor for default, not only must the fact be put in issue, but some case made by evidence to show the fact is probable, and the inquiry proper ; and that inquiry must be pointed to specifications. Let us apply this rule to the case before us. 1. Is the fact of default or negligence sufficiently put in issue?

It is true, the bill states he sold property to Joseph Hunter, and took his note, with Thomas Dawson as his surety, who was both insolvent and insane ; and that he sold, also, property to William Hunter, with Thomas Dogherty as his surety, who was insolvent; but it is nowhere alleged, that Yerby took these sureties knowing them to be insolvent. He may have acted in good faith, for anything that is charged in the bill on these points, which cannot be aided by the general charges of waste and negligence : but, 2. Is there any evidence to show the fact is probable, and the inquiry or reference proper ?

There is no testimony taken in the case, and the answer is a full denial of all the allegations of the bill. There is another point worthy of consideration. It is not charged in the bill, that any of the assets of the estate of Hunter came to the hands of Mrs. Yerby, as administratrix of her husband, but it simply seeks to charge Yerby’s estate with liabilities alleged, generally, to have arisen from the negligence of Yerby as administrator of Hunter; and yet the bill calls upon Yerby’s executrix for an account of effects received of Hunter’s estate.

In 3 Littell, 96, this point was presented for decision ; and it was held, that an administrator of an administrator could not be called on to account for the estate of the first’s intestate, without proof that the estate in fact came to his hands. But in this case, there is neither allegation or proof on that subject. If, however, these grounds did not preclude the complainant from calling for an account, there is yet another, which is fatal to the attempt set up in the bill.

Yerby, it is stated, was removed from the administration of Henry Hunter’s estate in August, 1823 ; the bill was not filed until July, 1835, being a lapse of nearly twelve years. The answer states, that Yerby fully accounted, as far as he proceeded in the administration, and that the assets remaining unadministered were delivered over to the present complainant. Under such circumstances, it has been held by the Chancellor of New York, in 3 J. Ch. Rep. 578, that an executor would not be decreed to account.

After so long ah interval, great difficulty would, of necessity, arise, in proving who were solvent or insolvent. Evidence once in existence, might, in the lapse of so long a period, be lost, removed, or the witnesses have died. It is, therefore, with great propriety, adjudged, that where the executor, when attempted, after so many years have passed since he ceased to act in his representative character,' to be held responsible for his acts in that character, answers that he has fully administered, he will not be decreed to account. The complainant’s bill must be dismissed, at his costs.