President, Directors, &c. of the Boston Bank vs. William Minot, Administrator, 3 Met. 507

Dewey, J. This is a writ of scire facias, in which the plaintiffs seek to charge the defendant as trustee of the Commonwealth Bank, in his capacity of administrator of the goods and estate of John K. Simpson, deceased, under the provision m the Rev.

Sts. c. 109, § 62, enacting that “ any debt or legacy due' from an executor or administrator, and any other goods, effects, or credits, in the hands of an executor or administrator as such, may be attached in his hands by the process of foreign attachment.” That the defendant is to be charged in this suit as trustee, to some extent, is conceded; but to what extent, is submitted to the court upon the facts stated in his answer.

The question presented for adjudication is one of conflicting claims between two attaching creditors, and the amount for which the defendant is to be charged depends upon the extent of the lien upon the goods and estate of the Commonwealth Bank in his hands, acquired by virtue of an attachment of the same by the trustee process, by one Emery Johnson, on the 23d-of November 1839, which attachment was prior to that of the plaintiffs.

The plaintiffs insist that the defendant’s liability to Johnson is restricted to the amount that the Commonwealth Bank would have been entitled to receive upon a distribution of the personal assets of Simpson which were in the defendant’s hands at the time such attachment was made ; and that, as to all the subsequently acquired assets, and more especially as to all assets subsequently acquired by the sale of real estate of Simpson, under a license from the court of probate, no lien was created by virtue of the previous attachment by Johnson ; but that the same are to be applied exclusively to the benefit of the plaintiffs, whose subsequent attachment, made on the 22d of September 1840, was after all the property of Simpson, real and personal, had been converted into available funds.

The argument is strongly pressed upon us by the plaintiffs’ counsel, that, at the date of the service of Johnson’s writ upon the defendant, all liability on his part, beyond the amount of the assets then actually in his hands, was contingent and uncertain, and therefore that he was not at that time further subject to the trustee process.

But it seems to us, that as to all the personal estate of Simpson, which came to the hands of his administrator at any time before the final settlement of his account and the decree for distribution of the effects, the rule of law has been declared in various cases, in which it has been held, that such administrator might be held, as such trustee, to the full extent of the funds that might come into his hands before the decree of distribution, although after service of the trustee process upon him. In Holbrook v. Waters, 19 Pick. 354, where an executor was summoned as trustee of a legatee, and in Wheeler v.

Bowen, 20 Pick. 563, where an administrator was summoned as trustee of an heir at law entitled to a distributive share, it was urged on the part of the trustee, that no liability could attach, because the effects and credits in his hands, at the time of the service of the trustee process, were not absolute, but contingent and uncertain : But the court ruled otherwise, and held that the Jien attaches before the decree of distribution, and before any liability to immediate payment of legacies or distributive shares exists.

The rule of law, in such cases, I take to be this ; that the lien takes effect from the service of the trustee process, and reaches the whole interest of the debtor that may eventually come into the hands of the administrator or executor. Great practical difficulties would arise from any other construction of this statute.

If the lien acquired by this process is merely to the extent ")f assets in the hands of the executor or administrator at the date of the service of the writ, it would require an exact adjustment of the account of his administration at that precise period of time ; and on each successive attachment, a new balance must be struck from time to time, making at these successive periods a distribution and adjustment among all intei ested in the estate — which, from the very nature of the case, would be impracticable ; as the assets to be divided among those interested in the estate can only be ascertained by the final settlement of the accounts of administration.

Nor do we perceive any good and sufficient reason for distinguishing between the cases of assets in the hands of the administrator, directed to be distributed among the creditors of the estate, where the same arise from the avails of land sold for the payment of debts, and the cases where the assets to be divided are exclusively the avails of personal property of the deceased.

We think a proper consideration of the nature of the trustee process against an administrator, with a view of acquiring a lien upon him for a debt due from his intestate to the principal defendant in such process, will fully sustain us in this position. The administrator is summoned as trustee, because he is the legal representative of the intestate. The person, whom he thus represents, was the debtor of the principal in the trustee suit, and, as such representative, the administrator is bound to pay the debts due from his intestate.

This duty attaches upon him, and is one as to which he cannot avoid a personal responsibility, unless he shows that he has fully administered all the assets, real and personal, of the deceased. This duty or liability is not increased by his instituting' the proper proceedings to authorize the sale of real estate, in case where the personal estate is insufficient to pay the debts.

It may limit his liability where he shall, in the proper and necessary discharge of the duties of his trust, have disposed of the real estate, and applied this, as well as the personal, to the payment of the debts, and thus demonstrated that the estate was not solvent. But the effects and credits, attached in his Viands by the trustee process, are the debts due from his intestate. This indebtedness is the foundation of the attachment.

The liability, as to the amount to be paid over, may be affected by the amount cf the assets eventually in his hands ; but whatever those assets may be, and from whatever source they may have been derived, to the extent that they furnish funds to pay the debts of the deceased, to that extent the administrator is responsible ; and that liability is absolute and fixed — although uncertain in amount —. from the time the administrator shall have accepted his trust.

And in this connexion it may be remarked, that it was equally a departure from the old doctrine, that a trustee could only be charged to the extent of the actual credits in his hands at the time of the service upon him as trustee, to charge an administrator with the moneys in his hands at the time of the final settle ment, or decree of distribution, which were the avails of notes of hand or other choses in action that were received by him after the service of the trustee process. But such construction has seemed to be necessary to give proper effect to the statute.

We think the present case, therefore, furnishes no exception to the general rule, that upon the service of a trustee process upon an administrator or executor, a lien attaches upon the debt, legacy, or distributive share, as the case may be, in the hands of such administrator or executor, which will entitle the plaintiff in such trustee process to demand and receive of the trustee whatever sum may be eventually due from him, as such administrator or executor, to the principal defendant in such action.

The effect of such attachment is, that the lien thus first acquired has a priority over all subsequent similar attachments, to the whole extent of the debt eventually to be paid by the admin istrator. The judgment in the present case will be, that the defendant be allowed to retain from the amount in his hands, due from him as administrator of the estate of John K.

Simpson, such sum as will be necessary to satisfy the full amount of the judg ment in favor of Emery Johnson against the Commonwealth Bank, and the defendant as trustee of that bank ; and that he be charged as trustee, in the present action, for the balance that may remain in his hands after satisfying the judgment in favor of said Johnson. Hubbard, J. did not sit in this case.