WILLIAM LIGHTFOOT, Administrator of Joseph Wooley, deceased, Plaintiff in Error, vs. ORSAMUS COLE, Administrator of the Estate of Johh Wooley, deceased, Defendant in Error, 1 Wis. 26

By the Qourt, Ciíawj?oed, J. In this case, the errors insisted upon are: 1st. In sustaining the demurrer to the third plea of the defendant. 2d. In permitting the deposition offered by the plaintiff to he used in evidence. 3d. In refusing to nonsuit the plaintiff on the motion for that purpose made by the defendant. 4th. In rendering the judgment given in the case. The first error involves the question of the sufficiency of the plea. This action was commenced on 31st day of July, 1849, at which time the “Act establishing Courts of Probate,” &c. of the Territory of Wisconsin was in force.

By this act a particular manner is pointed out and prescribed for the settlement of insolvent estates, and the creditors of such estates are required to conform to the provisions of this act, in enforcing their demands.

Section thirty, provides, that before the payment of any debts, except those privileged by the act, the executor or administrator shall represent the condition and circumstances of the estate to the judge of probate, and he shall thereupon appoint certain commissioners to examine the claims of all creditors; and the succeeding

section requires a report by such commissioners, after the expiration of the term allowed by the judge of probate, to the creditors, to present and prove their claims before the commissioners. Various other provisions are made in these statutes, securing to the executor or administrar tor, as well as to any of the creditors, a means of determining the amount of indebtedness by a reference to the courts of the common law, or, (by agreement of the parties,) to the decision of referees.

Section thirty-six provides that “no action shall be brought against any executor or administrator after the estate shall be represented insolvent, except for debts privi- ^ ^ ag aforegaj^ -unless the claim on which such ac-.a 7 tion may be brought, shall have been disallowed by the commissioners, or the executor or administrator having objection to the claim shall consent to have the same settled by course of law, in which case the judgment of the court shall determine said claim, and be reported by the commissioners as such.” It was entirely within the control of the legislature, to prescribe and modify the remedies which might be pursued in the courts of the Territory, and to provide one particular manner of proceeding, to the exclusion of others, so long as some specific remedy was preserved ; and we think, when this act was passed it effectually confined the creditors of insolvent estates, to the manner therein provided, for establishing and enforcing their claims against such estates ; for the language of the thirty-sixth

section is prohibitory, that, “no action shall be brought,” <fcc. unless the claim shall have been disallowed after presentation to the commissioners. The latter part of the

section evidently contemplates a resort to a court of law, for the purpose of liquidating the amount, before the commissioners have made their report. The thirty-eighth

section is equally peremptory, and provides, that if the creditor do not make out his claim, within the time, or in some one of the modes provided by the act, “he shall be forever barred of his debt ,” unless he shall find property of the deceased not accounted for by the administrator or executor before distribution.

The ordinary remedy of the common law is thus rendered inefficacious, because, if the creditor neglects to comply with the statute, and notwithstanding its express prohibition, brings Ms action, the administrator, as is done in tMs case, may set np a want of compliance with the law, by a plea in bar, wMcb must prevail, unless by a replication and proof the creditor can show Mmself witMn the last clause of the tMrty-eigbtb section. We have been referred to, and have examined the case of Paine vs. Nichols, (15 Mass. 264,) wMch involves the precise question before us.

From that case it would appear that the statute of Massachusetts, at that time in force, (Statute of 1Í84, Ohap. 2,) on this subject, was in substance similar to ours, and the court held, that a want of compliance with the statute, in presenting the claim to commissioners, would operate as a bar, notwithstanding’ the estate should eventually prove solvent. On this point it only remains for us to enquire whether the plea demurred to, contains sufficient to constitute a defence to this action.

Pleas in bar, are required to be certam ; but the minor degree of certainty, commonly called in the boots “ certainty to a common intent,” is enough, and if this plea shows, with this degree of certainty, proceedings in the Probate Court in accordance with the provisions of the statute, we must hold it to be good.

It sets forth, that during the month of December, 1848, Joseph Wool-ey, (the defendant’s intestate,) died; that witMn thirty days after his death, letters of administration were granted by the Court of Probate of Grant County, (in which county he died,) to Elizabeth Wooley, the defendant originally sued as the administratrix, who was the widow of the intestate; that thereafter, and before payment was made to any of the creditors of the estate, except debts privileged by law, the administra-trix “represented tie condition and circumstances of tie estate to tie judge of probate, “ and tiat tie said es^e wag insolvent, and would not pay tie full amount of tie debts due from tie said estate in tie opinion and according to tie judgment of tie said ad-ministratrix; tiat tiereupon tie judge of probate appointed two commissioners to receive and examine tie claims of all creditors of tie estate; tiat tie said judge allowed tie term of six montis, and no longer to tie several creditors, to bring in, and prove tieir claims before these commissioners; tiat these commissioners “ according to tie directions of tie said judge of probate, caused tie times and places of tieir meetings to attend tie creditors for receiving and examining tieir claims to be made known by advertisement in a public newspaper, printed and published in Grant County, for — weeks before tie time of tie meeting of tie said commissioners; tiat in pursuance of said advertisement, tie said commissioners did meet at tie times and places mentioned in tie advertisement, to attend on the creditors, and” at tie end of six months so allowed by tie judge of probate, “ did make tieir report to tie Probate Court, accompanied by a list of all claims laid before them, and tie amount allowed on each.” Tie plea then avers, tiat tie plaintiff “ did not within tie said six montis, nor prior to, nor on tie fourth day of June, 1849, which was tie last day of meeting mentioned in tie advertisement, (nor within tie time allowed by tie said judge of probate, and appointed by tie said commissioners, nor at any other time before tie report of tie said commissioners was made and filed in tie office of tie said judge of probate,) bring in and present tie said note in tie said declaration mentioned, to tlie said commissioners for their examination and allowance.” The first objection to this plea which is urged, is, that it does not aver that the estate of Joseph Wool-ey, at the time of his death, was insolvent.

It is a sufficient answer to this objection, that the thirtieth

section only requires the administrator or executor to represent the condition of the estate to the judge of probate.

There is nothing said in the statute as to the manner of determining when an estate is insolvent, but the reasonable conclusion to be arrived at is, that the executor or administrator, in the performance of his duties, acquires such a knowledge of the affairs of the intestate, as to enable him to form an opinion whether the estate will be sufficient to pay the debts, and when he u represents ” the condition and circumstances of the estate to the judge of probate, the law seems to be satisfied with his representation.

It is to be observed, that the second title of this act relates to the “ settlement of estates not represented insolvent,” and the third title relates to the “settlement of insolvent estates,” and in the thirtieth

section the executor or administrator is spoken of as “ appointed to any insolvent estate; ” but, certainly the judge of probate could have no official knowledge of insolvency until after the appointment of an administrator and his report had been made; and if it then appeared that the estate would be insufficient to pay the debts, the judge of probate would be called upon to appoint commissioners; but whether the estate is insolvent or not, must in all cases depend upon some report or representation of the person having charge of it.

Imthis case, however, the plea avers that the administratrix did represent that the estate “was insolvent,” and would, in her opinion, not pay the full amount of the debts. This was sufficient to authorise the judge of probate to proceed as in cases of insolvent estates. The next objection to the plea is, that it does not show that the administratrix had fully administered.

Plene admmistravit, when admissible, is of itself a good plea, but it strikes us that if it were incorporated in this plea it would render the latter bad, for we hold that a want of compliance with the statute by the creditor is, by the express words of the thirty-eighth section, a complete bar to the action, and the introduction of another substantial matter of defence, might render the whole plea bad for duplicity.

We do not think it was essential to the validity of the plea, that it should aver, (as is claimed by the counsel for the defendant in error in his next objection, (and which is in substance'embraced in the preceding one,) the payment and distribution of all the rest and residue of the assets to and among the several creditors, after privileged debts had been paid.

The plaintiff was not in an attitude to take advantage of any neglect of the administratrix in this respect, except in the instance contemplated by the latter part of the thirty-eighth section; and in such case it is, we think, with him, to “ find some other estate of the deceased, not inventoried or accounted for, by the executor or administrator before distribution,” in order to take his claim out of the operation of the statute. Another objection urged is, that the administratrix has not alleged that she did not consent to have the plaintiff’s claim against the estate settled by the course of law.

As this consent is in the nature of a condition on the occurrence of which the right of the plaintiff to "bring his action depended, it was incumbent on him • /V U , , , , p . . to set it up affirmatively, and the defendant was not required to plead the negative. Under this statute, there are hut two cases, in which a plaintiff can pursue ,his remedy at law against an insolvent estate. One of these is provided for by

section thirty-four of the statute; but here it is with the plaintiff to show that his claim was, in whole or in part, rejected by the commissioners, and that within twenty days after the making of the report, he gave notice at the probate office, and brought his action. The other case is, when the administrator is dissatisfied with the claim as allowed by the commissioners ; but neither of these cases would be applicable he* e.

We do not think the omission of tüe date of the first report or representation of the condition of the estate to the Judge of Probate was material; it was enough to show that it had been done before payment of any but privileged debts, and the other blank space in the plea, preceding the word “ weeks ” in stating the publication of the advertisement by the commissioners, is also immaterial, because the plea states that “according to the direction of the said Judge of Probate,” they (the commissioners) caused the time and places of their meetings to be made known, &c.

We think this plea was sufficiently certain, and contained a good defence to the action, and that the demurrer ought to have been overruled. The next error insisted upon is, that the deposition offered by the plaintiff was improperly admitted in evidence. There can be no pretence that this deposition was properly taken or certified, so as to entitle it to be read in evidence : but it is claimed that the C0U1^ helow liad a discretion to admit or exclude it under

section twenty-eight of

chapter ninety-eight of the Revised Statutes. That

section relates to depositions and affidavits taken out of the State, in some other manner than hy a commission issued, as in this case, and before some officer authorized by the laws of the State or country where they are taken, to take depositions ; but here the persons before whom the deposition purports to have been taken, had no authority whatever, save that delegated to them by the commission ; and hence the deposition could not properly be read in evidence, unless the rules of the Circuit Court on the subject had been complied with.

The court below had no such discretion as is claimed, and it committed an error in allowing the deposition to be read in evidence. In the view we have taken of this case, it is not necessary to give an opinion upon the error assigned, in the refusal of the court below to grant a nonsuit; but in regard to the construction to be given to the statute of limitations in this case, and which was insisted upon in connection with this point of error, we hold, that the one hundred and ninth

section of the “ Act concerning proceedings in Courts of Record” was intended, and has the effect, to extend the time within which actions might be brought .against executors or administrators upon causes of action which had accrued previous to the death of the testator or intestate. The language of the

section is, “ the term of eighteen months after the death of any testator or intestate, shall not T)& deemed any part of the time limited by law for the commencement of actions against his executors or administrators,” so that the time limited, six years, is, by this provision, and in cases like the present one, extended to seven years and six months.

The general limitation of six years is still applicable, but the term of eighteen months succeeding the death of the debtor is not to be included in the calculation of those six years; and therefore, to establish a bar by limitation, the party relying upon it must show the expiration of six years before the commencement of the suit, besides the eighteen months after or succeeding the death of the debtor. The opinion of Mr. Justice Cow-en, in the case of Howell & Strong vs. Babcock's Executors (24 Wend. 448,) gives the correct rule of construction to be applied to this provision of. the statute.

Our present statute has a similar section, (vide liev. Stat. Chap. 103, § 8.) The only remaining question is, whether the judgment rendered by the Circuit Court was such as ought to be rendered against an administrator, in a case like the one before us. This, surely, is not a judgment de bonis testatoris. It is de bonis propriis / and the introduction of the words, “ as administrator of the estate of Joseph Wooley, deceased,” was mere surplus-age ; at most but a description of the person.

It was, no doubt, the intention of the Circuit Court to render a judgment against the estate of the deceased, Joseph Wooley, or, in other words, a judgment de bonis tes-tatoris; but there has been a complete failure in carrying out this intention. Chief Justice Savage, in the case of The People ex. rel. Vogalrauger vs. The Judges of Erie Common Pleas, (4 Cow. 443,) in speaking 'of the form of judgment against an executor, says, “this should be according to his liability.

So far as this arises from pleading, I take the rule to be as follows : If he plead ne ungues executor, or a release to himself, and the issue be found against Mm, tbe judgment is, that tbe execution issue in tbe first instance, de Bonis te-siatovis si’ et si non. de -r . t . n 1 1 1 ’ boms proprns, for both debt and costs ; and the reason is, that be pleaded a plea wbicb be knew to be false, and thus unnecessarily delayed tbe plaintiff. Tbe rule laid down in Lansing vs.

Lansing (18 Johns. 503,) is right as to that case but it is too broad, and should be accompanied with this qualification; that if tbe executor suffer a judgment by default, or give a cognovit actionem or plead any other plea but tbe two above named, and tbe issue be found against him, tbe ■judgment is de bonis testatoris si, for tbe whole debt or damages and costs, et si non, then de bonis pro-priis for tbe costs.” This is the correct rule, and hence tbe judgment of tbe Circuit Court in this case, awarding execution, without any restriction or direction, is not such as it should have been. (See Mounson vs.

Brown Cro. Car. 518; Hardy vs. Call, 16 Mass. 530; 2 Burr Pr. 97.) The judgment of tbe Circuit Court in this case is reversed, and tbe case must be remanded for a new trial.