The Commonwealth vs. Blanton's Executors et al., 2 B. Mon 393

Chief Justice Robertson delivered the Opinion of the Court. ■ In the year 1818, one Benedict Costy, an isolated foreigner without heir or distributee, so far as is yet known, died intestate in Franklin county, in this State; and in June of that year, Carter Blanton was qualified as administrator of his goods, which were estimated, according to a reported inventory thereof, at about ‡1150. And that estate seems never to have' been appropriated by the administrator unless he applied it, as may be presumed, chiefly to his own use.

Blanton, the administrator, died in the year 1835, and, by his will, directed his representatives 'to indemnify his surety in his administration bond against his contingent liability for the fund thus retained and undistributed.

In January, 1840, the Legislature of this State enacted a statute (Session ads of 1839-40, p.t 47,) providing, in substance, that the “estates” within this Commonwealth, as to which the owners had previously died or might subsequently die intestate, without legal heirs or distributees, should be vested in the said Commonwealth, "without offlce found,” and requiring all executors and -administrators of such persons to pay into the public treasury thereof the net balance of such undisposed of property, within one year after the date of the statute, if administration had been grahted before its date, or within one year after the date of the letters of administration, if granted since that enactment/and also authorizing suits for settling such estates, and coercing the rights of the Commonwealth through the intervention of agents, to be appointed for that purpose in each county.

Decision of the Ofeneval Oourt, and the probable .grounds thereof. Escheats are the legal fruits of the ancientdoctrines of feudal tenure, and are applicable to immovable property alone.

In May, 1841, Alexander Rennick, who had been appointed the agent for Franklin county, filed an appropriate bilí in chancery in the name of the Commonwealth against the executors of Garter Blanton, for coercing an account and claiming a decree for the balance remaining in his hands, to be ascertained on proper settlement by the Chancellor—the said executors having, as alleged, refused to make a voluntary settlement or to pay any thing into the Treasury. The General Court having dismissed the bill upon demurrer, this writ of error brings up that decree for revision.

As the bill contains every essentia] allegation, the Circuit Judge must have sustained the demurrer on one or both of two grounds. First, an opinion that if no person was entitled under the statute of distributions, the personal estate of the intestate had become vested by operation of law in Blanton in his own beneficial right, and that the Legislature has no constitutional power to divest that right and apply the property to the use of the Commonwealth. Second, such an

interpretation of the statute as would restrict it to the unconverted and specific property of intestates in the hands of their representatives. We will, therefore,.consider these grounds in the or-der in which they have been suggested. 1. Escheats, being the legal fruits of the ancient doctrines of feudal tenure, were always applicable, of course, to immovable property alone: movable things never es-cheated in the technical sense.

In England, there has been some diversity of opinion as to the ultimate title to the goods of an intestate after payment of his debts, and when no person appeared who could claim under the statute of distributions. There is no trace of- any British statute that can shed any light on that obscure subject. .Nor, if we explore the labyrinth of the ancient common law, can we find any sure clue to a conclusion perfectly clear and satisfactory. Historic outline of the origin of administrations.

Administration and the right thereto is statutory, and an attribute of sovereign power, which in the days of Glanvil and Braeton, belonged to the King as parens patria, through the instrumentality of County Courts; after-wards by the prelacy, until the 13 Edw. I. c. 19, called Stat. Westminster. Stat. 31, Edward III. c. 11, required the ordinaries to appoint adm’rs andmake them accountable as ex’ors. The stato of the law ot administrations, at the passage of the 1st statute of distributions, 22 and 23 Gh. II, c. 10, • which requires distribution among kindred only.

Personal administration, and the right to such administration, are altogether statutory. The right to administer on the estate of an intestate is an attribute of the sovereign power. ' In the days of Glanvil and of Bracton,' when the common law of England was in its seminal state, the King, as parens patria, had a right to take possession of an intestate’s effects and apply them first to the payment of debts, and next to the use of his wife and children, if any, and if none, to his next of kin, and, if none of these, then to the public use.

And that prerogative of sovereignty was first exercised through the instrumentality of the County Courts, and, in some instances, was delegated as a franchise to lords of certain manors.

But, at a later period, it was vested in the prelacy in confidence, that official piety would devote more beneficially to the intestate’s soul the residual third, called “the dead man’s part,” after allotting the other two thirds to the widow and children to which they were entitled as paries ralionabiles.' The ordinary was expected, of course, to dedicate that third part faithfully to pious uses, arid if he failed to do so, or converted it to his own use, he was guilty of-a breach of trust.

But, finding that the ordinaries perverted their trust to their own use, the legislative power, in 1285, enacted the statute of 13th Ed. 1, c. 19, called the statute of Westminster the Second, requiring them to pay the debts of intestates, which, as Sir Edward Coke said, was only declaratory of the common law. To afford a still stronger guaranty against a misapplication and unauthorized conversion of the effects of in-testates, the statute ■ of 31 Ed. 111. c. 11, was enacted, requiring the ordinaries to appoint administrators and hold them as accountable as executors.

But, in the progress of time, administrators, after paying debts, refused to distribute the residue of the estate committed to their trust. And, although the ecclesiastical courts attempted to enforce distribution, yet, in the case of Hughes vs Hughes (Carter, 125,) the court of Common Pleas enforced a prohibition • to the Court Christian on the fiimsey ground thá^dn granting administration, the ecclesiastical jurisdiction was exhausted.

And the temporal courts not venturing to arrogate jurisdiction over administrators, there was thus a temporary-interregnum of judicial authorityas to compulsive distribution, until Sir Orlando Bridgman, (who, as Chief Justice of the Common Pleas when Hughes vs Hughes was decided, had dissented from the majority) determined to supply, by act of Parliament,Hhe remedy which the courts doubted their authority to give, and, therefore, he procured the enactment of the statute of distributions, 22 and 23 Ch. 11, c. 10.

In cases of intestacy and defect of legal representatives in Eng. the King granted the effects to the -ordinaries, reserving a proportion. But that statute only requires distribution among the intestate’s kindred, and is silent as to the disposition of his effects when there are no such distributees. This historic outline furnishes the only clue to the as. sumed right of beneficial property in administrators, when there is no person entitled under the statute of distributions.

It is evident that the only reason for that assumption was the defect of prescribed remedy antecedently to the statute of distributions, and the fact that the statute directs no appropriation in the event of a fail, ure of kindred.

But the same history s,hows, as we are inclined to think, that the temporal court was wrong in withholding remedy when there was a clear right; and that, however this may be, the King, as the official organ of the public, had never surrendered his sovereign right as ultimate distributee in trust for all the people who certainly had more title than any one of them who was a stranger in blood to an intestate could be admitted to possess from the accidental circumstance of being appointed a trustee for every and any one who might be entitled to the effects of the deceased.

And this deduction seems to be fortified by a preponderance of British authority. In cases of intestacy, and defect of legal distributees, it seems to have been the practice of the crown to transfer- the royal title to the undisposed of effects to the ordinary or an appointee on the King’s nomination—reserving, as the consideration of the grant, a certain reversionary proportion of interest: 11 Vin. Abr. 87; Com. Dig. Adm. A. Jones vs Goodchild, 3 P. Wms. 33; Doug. 548.

And, in every case of an intestate bastard who, in contemplation of law, had no kindred, the King, as ultimus hares, is admitted to be entitled, at his election, to the effects after payment of debts.

In the cáse of Middleton vs Spicer, 1 Brown’s Chancery Rep, 201, the' Chancellor reviewed the authorities on this whole subject, and decided that a personal representative, ioho was only a trustee, never acquired a beneficial title to an intestate’s effects in consequence of a failure of distributees; but that, in the event of such failure, the surplus, after payment of debts, was held in trust for the King: and he said, moreover, that .the royal right in such a case was not, (as in the case of an escheat, as decided in Burgess vs Wheat, 1 Eden. 259,) seignioral but prerogatival- merely. Before the statute Wm.

IV. the courts of England gave to the King the residue oí the goods of a testator, wherever there vvas ground to presume the testator did not intend that the executor should have them. And there exist* no reason for a distinction between a trustee appointed by the testator and one appointed by law. The same doctrine was. virtually reiterated and confirmed in the case of Barclay vs Russell, 3 Vez. 424.

And-each of those cases overrules, as an unauthorized dictum, the suggestion in 2 Salk. 37; that the property of an intestate was beneficially in the ordinary, and recog-' nizes the converse as declared in 2 Inst: 398. We should be inclined, therefore, strongly to the conclusion that, according to the common law as now understood in England, an administrator has no indefeasible beneficial title to his intestate’s effects merely because there are no distributees' under the statute of distributions.

Until jthe enactment of a statute in the reign of William IV. an executor, in consequence of an’assumed in. tention of the testator to that effect, was considered entitled to the unbequeathed surplus, unless, by giving him some other legacy or otherwise, the testator had manifested the intention that he should be a trustee only.

But, before that enactment, the courts of England decided in many cases that, whenever there was ground for presuming that the testator did not intend that his executor should be implied legatee of the unbequeathed residue of his goods, the King, (as trustee for his subjects,) and.not the executor, was entitled to that residue if there was no legal distributee. ' And we can perceive no reason for discriminating, as to the matter between a trustee nominated by the testator and a trustee appointed by public authority or the law.

This public right may not have been generally enforced, and tacit forbearance may have induced an opinion that what administrators had not been required to surrender they had a legal right, beneficially, to hold and enjoy as their own. Indeed it may be truly said that, until the public right is asserted, the administrator is entitled to the effects and may consider and use them as his own, there being no statutory distributee. The statute of the colony of Virginia of 1655, 6th year of the Commonwealth, and 1661, 14 Oh. II, that of 1711, 9 Anne, quoted and considered as declarative of the common law.

This subject was touched by this Court in Conclude vs Williamson et al. (1 J. J. Marsh. 18,) and it was there said, that the title remained in the administrator until divested by the Commonwealth; but the Court carefully withheld any opinion on the question whether that title was of such a character as to preclude any claim to, or disposition of, the property by the Commonwealth. However, the Court, when that ease was decided, was not aware of a local authority which we have since found, and which concludes all question upon this point here, whatever may be the doubts or the doctrines elsewhere.

We allude to two ancient statutes of the colony of our parent State, Virginia, and which, never having been repealed, so far as we have been able to ascertain, were adopted as the law of Kentucky by our State constitution. In March, 1655, and sixth year of the Commonwealth of England, the colonial Legislature of Virginia enacted, “that, if any administrator be of no kin and have assets, “all the estate left after debts be paid be employed in*the “county where he lived: for settingup of manufactures “or for other publique vses, the administrator being paid his reasonable charges and for his paynes:” (1 Vol.

Henning's Statutes at large, p. 401.) And in March, 1661-2, (14 Charles II,) the same Legislature enacted that, after payihent of debts, “the surplusage, if any remayning, (if there be no widow or “child,) be delivered to the next kinsman of the dece“dnet, if he appears, and if none prove himself such “within three years, then the Court to give an account tif ‘ ‘the said surplusage to the assembly, who are to dispose ‘ ‘of the same to the use of the 'country, allowing to the “Court'or whom they intrust with the management of itt, “for his reasonable costs and paynes.” The statute of 1798, making slaves real estate, and its proviso, that they should not es-cheat, does not necessarily imply that movable property where there is a defect of heirs does not belong to the Commonwealth, without office found: but only to say that they, by being made real estate for certain purposes, should not he subjected to the circuitous process of an inquisition, &c. to secure the rights of the Commonwealth.

And

an act of November, 1711, (9 Anne,) requires administrators to give bond with a condition, among other things, “to pay to such person or persons as the County ‘ ‘ Court Justices shall direct, .pursuant to the laws in that “cas,e made and provided” These enactments may have been understood as declaratory of the law of England, and if so, they were intended chiefly to vest, without doubt, in the colony what otherwise might peihaps have been claimed by the crown.

But however this may have been, the colonial statutes of 1655 and of 1661, gave the quietus to all legal claim by an administrator to the effects of his intestate, on the failure of kin, if the colony or Commonwealth (as it after-wards became,) elected to assert its right. The ultimate right of the administrator in such a case, was, therefore, altogether contingent, depending wholly on the legislative forbearance or renunciation.

The Legislature of Kentucky, after declaring, by a statute of 1798, that slaves should be deemed real estate, added this proviso: “that no such slave shall be liable to “be escheated by reason of the decease of the proprietor “for the same, without lawful heirs, but all such slaves “shall, in that case, be accounted and go as chattels and “other personal estate.." That proviso might possibly be considered as implying that, in the opinion of those who enacted it, personal property did not relapse to the Commonwealth either by escheat or otherwise; and this

interpretation we were ourselves once rather inclined to give to it. But it is not, as we now believe, entitled to any such effect. As already suggested, movables' never escheated. And, in order to escheat land, a judicial proceeding was necessary ; and the title never vested in the Commonwealth until after office found. Escheators also were required to be appointed.

Then, as slaves, when personal estate in law as well as in fact, belonged to the Commonwealth without the contingencies, circuity, -and expense of an inquisition, the Legislature very properly declared that the technical conversion of that kind of property into real. estate, should not change or embarrass the ultimate light of the Commonwealth, on a failure of distributees, by making it depend on an office found; and, therefore, it was provided that slaves should not be “liable to be es-cheated,” but should go as chattels, that is, at once without the intervention of escheators or inquisitors.

This is now our construction of that proviso. We cannot believe that the Legislature of 1798, intended that administrators should be entitled, absolutely, to the slaves of persons who died intestate, without legal distributees, or intended, by implication or otherwise, to repeal the preexisting law recognizing the right of the-Commonwealth, and providing for securing the enjoyment of it by requiring reports from the County Courts of all such estates. The statute of 18d0, not unconstitutional, but only as,asserting along neglected, but indisputable right.

The statute of 1840 pointed out-the mode of recovering the rights of the Commonwealth, where there is a defectof heirs, & is not to be confined in its operation to the specific thing, coming to the hands of an administrator, but the value of the thing converted by the administrator is recoverable by the Commonwealth from the administrator, without regard to lapse of time.

From the foregoing conclusions, the deduction is inevitable that the statute of 1840 cannot be liable to lhe charge of attempting, unconstitutionally or unjustly, to divest any indefeasible or meritorious right, but should be considered as having the effect only of asserting and securing an indisputable,"but Tong ñeglecied and dormant right in thTTTommónwealtb.

TEaTnght, resulting as a trust for the whole people, cannot be considered as having been abandoned or lost by desuetude or vested absolutely and beneficially in the administrator, who took the intestate’s property in trust for the ultimate successor, and not for his own use or benefit. 2. As there yet seems to be no statutory distributee of Gosly’s goods, the Commonwealth, rather than the ad-, ministrator, was entitled to them, before and independently of the act of 1840. And, the right existing, the prescribed and adopted remedy may be applied, whether the letter of the statute embraces such a case or not.

But we are of the opinion that the literal import of the enactment embraces this case. It undoubtedly has a retrospective operation. What limit is prescribed to the retroaction? It certainly embraces administrators who had converted the assets by sale; for it requires them, after settlement of their accounts, to pay into the treasury any balance “of cash” which may be found in their hands. It cannot, therefore, be restricted to estates in kind, before any administration of them, but applies to all unappropriated balances, without regard' to their specific quality or to lapse of time.

And the adm’r. or ex’or. or other representatives of the person who has thus received and converted property is responsible to the government to the extent of assets, and the sureties of the executor or administrator to the same extent, Cates, Alt. Gen. for Commonwealth; Owsley Good-be and Todd for appellees. fr Nor can Carter Blanton’s death be deemed material to the right of the Commonwealth to maintain this suit.

It was the duty of his executors to settle and account when required to do so, as they were, by the public agent; and surely the accidental death of an administrator, whether before or since the enactment of 1840, cannot entitle his representatives to that to which he himself would have had no title had he survived. The statute applies to the case. It may not be improper to add that, as Blanton was contingently liable to the Commonwealth when he executed his fiducial bond, his sureties in that bond may also be liable to the same extent, if his estate should be insufficient.

The Commonwealth was ultimate distributee according to the law in force at the date of the bond. Having asserted her claim, and prescribed a mode of enforcing it, the sureties cannot say that a new and unreasonable burthen has been thereby imposed, nor that it is not embraced by the condition of their bond, stipulating for an account and payment, by their principal, to whomsoever he might be liable. Nor is it material to the question of liability in this ease, whether the administrator had converted the assets to his own use or retained, at his death, the unappropriated balance in money.

In either event he was liable to the Commonwealth when she might elect to assert her claim; and his executors are equally liable so far as assets of his estate have come to them. It is, therefore, the opinion of this Court, that the demurrer ought to have been overruled and the defendants required to answer the bill. Decree reversed and cause remanded for further proceedings.