Andruss, administrator of Moore, against Doolittle, 11 Conn. 283

Williams, Ch. J. The defendant claims, that the plaintiff had no right to the custody of the property in question, until it was ascertained, that it was needed to pay debts. It has been decided, by this court, that it is the duly of the administrator to inventory property of this description. Minor v. Mead, 3 Conn. Rep. 289. Booth v. Patrick, 8 Conn. Rep. 106. And as the executor is to inventory only the estate of the deceased, it would seem to follow, that he ought to have the custody of that for which he must he responsible. It is said, the administrator may waste it.

He, on the other hand, may say, that the fraudulent grantee may secrete or destroy it. And it would seem as if an officer of the law was most worthy of confidence; and if the fact is ascertained, that the property is wanted fof the payment of debts, then it is all important, that it should be within the controul of him whose duty it is to pay them. This brings us to the next question in this case, how is this insolvency to be proved ?

The defendant claims it can be done only by the orders and decrees of the court of probate ; that this is the tribunal constituted for this purpose : and that it would be almost impracticable to try this question by a jury. While this court are not desirous of embarrassing themselves, or a jury, with questions cognizable only by the court of probate, they are not willing to establish a technical rule, by which a sure defence would be provided for the fraudulent grantee of a deceased person ; and such, it is apprehended, would be the effect of adopting the principle claimed by the defendant.

The administrator must inventory these articles, so fraudulently conveyed. Suppose they amount to more than the debts ; how can the court of probate determine this estate to be insolvent? That court cannot do it. Of course, as the estate appears solvent at the probate office, the fraudulent grantee may cover himself, by this shield : and as the court of probate can make no order, which will reach him, he may safely retain the property.

The fact is, the court of probate can never determine the insolvency of the estate, until the property is sold, and the administration account settled ; and if this defendant, or persons in his situation, can prevent a sale of the property, in this way, then the estate can never be settled ; and as the court of probale cannot decree its insolvency, he may always retain the property. From the necessity of the case, therefore, this question must be tried before the courts of common law.

It was also claimed, that if the plaintiff had a right to the property, when he made his demand, he was bound to give notice, that there were creditors, and that the property was needed to pay them. In support of this position, no authority is cited : and we do not see any foundation for the claim. If the defendant has good title to this property, as against creditors, he must eventually hold it; if he has not, it is not easy to see why he should not surrender it to him who is the representative of the creditors, and who cannot finally hold it, if it is not necessary for them.

If the intestate were alive, the creditors would seize this property as his, and leave the defendant to make out his title, by a suit. He certainly is placed in no worse situation, by this course, and can have no reason to complain. Another objection was made, that the court did not instruct the jury, that the implied promise of Clark to indemnify Moore as his surety, and the defendant’s promise to pay 100 dollars to each of his daughters, should have been inventoried and taken into consideration, in deciding the question whether this property was wanted to pay debts.

As it respects the claim on Clark, the administrator had nothing to inventory until the debt was paid. Brentnal v. Holmes, 1 Root 291. But the whole question relative to this subject was fairly before the jury, when they were considering the insolvency of Moore, That insolvency was founded, in part, upon his liability for Clark; and if Clark was able to pay the debt himself, that fact would have its proper weight, when they were considering whether he was insolvent. As to the sums payable to the daughters.

If this contract made between the defendant and the intestate was fraudulent as against creditors ; and the administrator was attempting to vacate it, on that account: it surely would be extraordinary to call upon him first to treat that contract as a valid one, and claim under it, while he is claiming that it is a nullity ¡ and more extraordinary would it be, if after the jury had found that contract fraudulent and void, we should set aside that verdict, because the court bad not directed the jury to treat it as valid, so far as to make the plaintiff accountable, in some measure, for the consideration of that contract.

Upon the whole, we are satisfied, that none of the objections made by the defendant, ought to prevail; and no new trial ought to be granted. The other Judges concurred in this opinion. New trial not to be granted.