Ann Lee v. William Gardiner, use, &c., 26 Miss. 521

Mr. Justice Handy delivered the opinion of the court. This is an action of debt brought by the defendant in error against the plaintiff in error, founded on a judgment against her as administratrix of Charles S. Lee, deceased, and seeking to recover for a devastavit committed by her. Several questions of great importance and no inconsiderable difficulty have been presented in very able arguments by the counsel for the respective parties. These questions will be noticed in the order in which they have been presented in behalf of the plaintiff in error.

The first objection is raised by demurrer to the declaration, and it is insisted that the action of debt for devastavit cannot be maintained under our laws; that it was a common law remedy, and cannot be maintained, except under the circumstances and for the reasons by which it was justified at common law; that the reason on which it was founded at common law was, that the original judgment against the administrator was an admission of assets, which necessarily rendered him liable to an action for devastavit, upon his failure to satisfy that judgment; but that this reason fails in this State, because such a judgment is no admission of assets in the administrator’s hands under our law, and, therefore, that the remedy does not exist here.

Let us examine this position. The action of debt lies whenever the demand is for a sum certain, or capable' of being readily reduced to a certainty. Consequently, it lies upon a judgment, when that is the foundation of the action and the matter sought to be enforced. It is held by the highest authorities, that, in actions of debt on judgments for-devastavit at common law, “the foundation of the action is the judgment obtained against the administrator.” Wheatley v. Lane, 1 Saund. 219, b., n. 8; 2 Wms. Ex’rs, 1420; Gordon's Administrator v. Justices, &c. 1 Munf. 12. But why is it the foundation of the action ?

It is insisted, in behalf of the plaintiff in error, to be because it is a confession of assets sufficient to pay it by the administrator; and it is contended that, where it has not the effect of such confession of assets, it cannot be the foundation óf the action. We do not consider this position tenable. In England, a judgment against the administrator had two effects: first, to establish the claim against the estate; and, secondly, to charge the administrator with an admission of assets sufficient to pay it.

The first had reference to the liability of the estate, and fixed that; the second had reference to the administrator, and affected his individual liability. The first is the most important and indispensable, because it is really the foundation of the liability. And hence it is held, that no action of debt, for the devastavit of the administrator, lies upon the bond of the intestate, or upon a judgment against the intestate, there being no judgment against the administrator ascertaining the liability of the estate.

The judgment against the intestate might be paid, and therefore it is required that the judgment be perfected against the administrator in due form, before it can be enforced as a demand against the estate. But where the judgment is obtained against the administrator, it establishes the claim against the estate, and thereby becomes the foundation of all subsequent proceedings at law to obtain the fruits of it from the administrator.

The consequences which result to the administrator from the rendition of the judgment against him, and which involves his individual liability, are matters of consideration distinct from its being the foundation of the claim against the estate. By the common law, an important consequence of the judgment was an admission of assets by the administrator, which dispensed with any further evidence in another proceeding to establish that fact. This was a mere rule of evidence charging the administrator.

By our laws, this rule of evidence is abolished, and the presumption of assets resulting from the rendition of the judgment against the administrator is destroyed. But this does not destroy or affect the main effect of the judgment, as the foundation of the plaintiff’s claim against the estate. Nor does it debar the plaintiff from proceeding, by any remedy recognized by the common law, to enforce his judgment against the administrator. It only deprives him of the benefit of the evidence of assets arising from his admission, and puts him to the proof of the devastavit by other evidence.

In this State, as in England, the administrator is liable for a devastavit, upon proof of assets received and wasted by him. In England, the liability was established by the judgment, execution, and return of “nulla bona” Under our laws, this is insufficient to establish liability. But does this difference in the mode of proof take away the remedy existing, by the rules of the common law, in a case where the devastavit had been actually committed, and was susceptible of proof? We think not. A statutory alteration of a rule of evidence in a particular action does not necessarily take away the form of the action.

It may render necessary further averments in pleading, in order fully to set forth the state of case creating a liability on the defendant; and such is the case in this action. But this does not change the nature and form of the action. Wc have above adverted to the general rule of pleading; that the action of debt lies for a sum certain, or which is capable of being reduced to a certainty. Here, the judgment against the administratrix, which is held to be the foundation of the action for devastavit, ascertains the amount of the plaintiff’s demand.

The averments of the declaration set forth the acts of the administratrix which create a liability to pay that judgment, and it only remained to estimate the damages consequent upon the detention of the debt. Upon general principles of pleading, the action is, therefore, clearly maintainable. 1 Chitt. Pl. 123 (6th Am. Ed.).

It is admitted to be the usual and preferable mode of proceeding in England, and it would indeed be strange that a well settled common law remedy should be held to be taken away in a case of plain breach of duty and consequent liability, because the statute had provided that the liability should be made out by positive evidence, and not by mere technical presumptions. Moreover, this form of action has received the sanction of this court, and that too in the case in which the rule of non-admission of assets, here relied on in opposition to the action, is settled, Howard v. Cousins, 7 How. 114.

It is not to be supposed that the court could have sanctioned that action, unless it had been considered that the rule then announced did not militate with the action. We are, therefore, of opinion, that the demurrer for this cause was properly overruled. The second objection is, that the judgment recited in the declaration was void, for want of a proper plaintiff at the time of its rendition.

It appears that the suit was instituted in the name of “ Christopher Dart and William Gardiner, copartners under the name of Dart & Co., for the use of Christopher Dart.” Before judgment, Dart died, and his death was suggested, and the suit progressed to judgment in the name of William Gar-diner, surviving partner. It was not revived in the name of the legal representatives of Dart, the usee; and the plaintiff in error, therefore, insists that the suit abated, and that the judgment rendered in it was void.

The statute touching this point provides that, in case of a suit commenced in the name of any person for the use of another, “ the same shall not abate by the death of the nominal plaintiff, but shall progress to final judgment, &e., in like manner as if brought in the name of the person for whose use such suit was instituted, who sháll be liable for the costs of suit, as in other cases ; ” and in case of the death of such usee before final judgment, “it shall be lawful for the party representing such deceased person, as executor or administrator, to be entered on the records and papers in the place of such deceased person.” Hutch.

Code, 842. By strictly legal rules, the usee is not a party to an action. He is only treated as such”in virtue and to the extent of the provisions of this statute. It has reference to two states of case: first, where the nominal plaintiff dies; and, secondly, where the usee dies, the nominal plaintiff surviving. The first has no application here, because the action survived to the surviving partner of Dart, who continued the nominal plaintiff. But in case of the death of the usee, the nominal plaintiff surviving, does the suit abate ? The statute does not so declare.

It merely makes it lawful for the administrator to be entered of record in the place of the deceased. It would seem that unless he sees proper to exercise that right, the suit would progress without it, there being already a legal plaintiff capable of representing it. It is not provided for in the statute, and must be governed by the rules of the common law. It has been held by this court that the name of the usee may be stricken out on motion. 4 S. & M. 352. If he were the legal plaintiff, and a necessary party, this could not be done, for it would have the effect to dismiss the suit. We think that the proper

interpretation of the statute is, that the administrator of the deceased usee may become a party to the suit; but if he fails to do so, that the suit may progress in the name of the nominal plaintiff, he being accountable for the avails of it to the administrator of the usee. If this be true, it did not render the judgment void, that it was entered “for the use aforesaid.” Another objection raised on the demurrer is, that this action. cannot be maintained by Thrasher as assignee in the manner in which it is brought, “ William Gardiner, survivor, &c., suing for the use of John B.

Thrasher, assignee of Christopher Dart, in his lifetime.” It is said that the record shows that Dart died before the original judgment was rendered, and therefore could not have assigned the judgment in his lifetime. If this action had been brought in the name of Thrasher as the legal plaintiff, claiming as assignee, this objection would be well taken. But the suit is in the name of Gardiner, for the use of Thrasher, assignee, &c. It was competent for Dart in his lifetime to assign to him the beneficial interest in the suit, not to make him a party to the suit, but to entitle him to the proceeds of it.

This would entitle him to the benefit of the judgment as an equitable assignee, and as such, would justify the institution of the suit in the name of the legal plaintiff for his use. 2 S. & M. 250; 6 Ib. 440; 7 How. 216. But upon demurrer, though the assignment were invalid, the suit would be maintained in the name of the legal plaintiff’. 6 S. & M. 70. Again, it is urged that this judgment is erroneous under the pleadings.

The declaration avers that the administratrix had of the goods, chattels, credits, and sums of money which were of the estate of the deceased at the time of his death, in her hands to be administered, to the amount of the plaintiff’s judgment, of which she distributed the sum of $13,395, to the heirs, and thereby committed a devastavit.

The fourth plea is, that no money or credits which were of the deceased at the time of his death came to her hands, and that all the goods and chattels of the deceased at the time of his death which came to her hands, were duly sold by order of the probate court, and the proceeds duly paid to the creditors of the deceased, and that no part thereof was wasted or misapplied.

To which the plaintiff replied in substance, that the ad-ministratrix represented the personal estate to the probate court to be insufficient to pay the debts, obtained an order to sell the real estate, which she sold for that purpose, for $20,092.50, and received the moaej, but did not apply it to the payment of the debts of the estate. And to this replication the defendant demurred generally, which was o.verruled.

In support of the demurrer, it is urged, 1st, that the lands mentioned in the replication, were not-assets in the hands of the administratrix, but descended to the heirs at law, and if sold, that the proceeds became equitable assets, to be administered by a court of equity, and that no legal devastavit could be committed of them. 2d, that the replication was a departure from the declaration, which avers a devastavit of goods, chattels, credits, and moneys which were of the deceased at the time of his death, while the replication alleges a waste and misapplication of the proceeds of lands sold after the intestate’s death.

The main point involved in both these objections is, whether the real estate of a deceased person administered by the probate court, or under its jurisdiction, for the payment of the debts of the deceased, in case of insufficiency of the personal estate properly shown, is assets subject to such administration as of the time of the death of the intestate, and whether the administrator is responsible to creditors for the proceeds as for assets of the deceased at the time of his death.

By the statute (Hutch. 666, § 98), the probate court is required to direct a sale of the lands of the deceased for the payment of debts, in case of insufficiency of the personalty. Its jurisdiction over the lands is as ample as over the personalty.

They are equally liable to the payment of the debts of the deceased, the personalty being only required to be first exhausted; and both appertain to the regular and exclusive jurisdiction of the probate court in “ matters of administration.” The sale is required to be made by the administrator as a part of his regular duty of administration, without further security for the performance of it than the bond given by him as administrator of the goods, chattels, and credits of the deceased at the time of his death, and finally, in caáe of insufficiency of both real and personal estate to pay the debts, the proceeds of both are distributed alike to and among the creditors ratably.

From all this it is manifest, that lands are subject to administration for the payment of debts as of the assets of the deceased at the time of his death, that it is the duty of the administrator, in case of deficiency of the personalty, to sell -them for that purpose, under the order of the probate court, which he is required to obtain, and when sold, that he is responsible for the proceeds as assets of the deceased at the time of his death. It may be said that the lands are not assets until they are sold and the proceeds received, and this is true so far as the actual administration of them is concerned.

Yet they are nevertheless assets subject to the payment of debts before the actual appropriation of them to that purpose. Nor are they the less assets, because their liability as such depends upon the contingency of the deficiency of the personalty. When that contingency occurs, they become as completely subject to the payment of debts as the personalty, and assets upon the same principle as the personalty, their liability as such having relation back to the death of the deceased.

If this be not true, it may with equal reason be said, that the personal property is not assets, and subject to the payment of debts from the time of the death of the deceased, because it may not be necessary to sell it, and when it does become necessary, it cannot be done without an order from the probate court. But this would scarcely be asserted.

It follows from this, that the allegation in the replication of a waste of the proceeds of the sale of the intestate’s lands, is not a departure from the averment in the declaration of a de-vastavit of the “ credits and moneys” which were of the deceased at the time of his death. It is not an abandonment of the ground taken in the declaration, but a “ restatement in a more minute and circumstantial manner of the cause of action set up in the declaration,” which is 'allowable as a new assignment. 1 Chit. PL 659; Gould, PI. 366, note 14; lb. 457, § 75.

Under the circumstances of this ease as presented by this demurrer, it is immaterial whether the proceeds of the sale of the lands were equitable or legal assets. It is clear that they were the latter,'and that the administrator acts in relation to the lands in his official capacity as administrator, and not as trustee. And the proceeds of the sale of lands in such cases are administered in the same manner as the avails of the personalty. Hutch. 667, § 3; and all distinction between legal and equitable assets in the administration of them in the probate court, seems to be destroyed.

But if the funds in this case were equitable assets, under the pleadings they were still liable to the plaintiff’s claim. It is averred that the administratrix did not apply them to the payment of the-debts, but distributed them to the heirs, and it does not appear that there was any other debt except that of the plaintiff. In any point of view, therefore, the demurrer to the replication was properly overruled. Another error assigned is, that the original judgment against “ Ann Lee, administratrix of Charles S.

Lee, deceased,” was improperly admitted in evidence on the trial, because it was a judgment de bonis propriis, and did not charge the estate, and therefore did not sustain the declaration. But it has been held *by this court, that such a judgment binds the estate and not the administrator individually. 4 S. & M. 113. Again, it is contended that it was error to admit the probate court records on the trial, because the transcript offered was imperfect.

The certificate of the probate clerk states, that it is a “true and perfect copy of the original papers, orders, and proceedings,” in the probate court and of record, “ excepting the bond executed at September term, 1838, by the administratrix for the sale of certain real estate.” It is said that the omission of this bond rendered the transcript imperfect, and therefore admissible. It is certainly competent for a party to introduce as evidence such proceedings of the probate court, and such acts of the administrator of record there as are necessary to establish his case.

He may introduce the inventory, the account of sales, or the final account returned to the court by the administrator. Such a record is not an entire thing as in an action at law. Moreover, the bond alluded to, so far as it had any connection with the case on trial, must have been void, for it would seem to have been executed on the application to sell the lands for the payment of debts. If executed in such a proceeding, it is unauthorized and void.

If executed in any other proceeding, it was irrelevant to the case on trial, because the action was brought to recover from the administratrix for the money arising from the lands sold by order of the probate court, for the payment of debts. Nor is the objection to the receipt given by Bowen well founded. That was a copy of a receipt on file in the probate court, and returned by the administratrix as a part of, and voucher to, her final account, showing the payment of ¡|13,395 by the administratrix to Bowen, in right of his wife, as one of the heirs of Charles S.

Lee, for his interest in the money arising from the sale of the lands, as mentioned in the pleadings. It was returned as part of her account, adopted as her act, and made a part of the record. It was no valid ground of objection that it was introduced apart from the transcript, for the reason above stated; and, indeed, it is difficult to perceive any plausible ground of objection to such evidence.

The plaintiff in error insists that the plea of the statute of limitations of three years was a good defence to the action; that this was an action of debt “ founded on a contract not under seal,” and is embraced by the 4th

section of the act of 1844, Hutch. 830. This question is not free from difficulty. The solution of it depends upon what is to be considered the foundation of this action. Some cases hold that the devastavit is the foundation of it, and that nil debet, or even not guilty, is a good plea to it. 2 Lord Raymond, 1503; 1 T. R. 462. Other authorities hold that the judgment against tli'e executor is the foundation of the action. 2 Williams, Ex’ors, 1420; 1 Saund. 219, note b; 1 Munf. 12; and it is classed in the works on pleading, as an action of debt on record. 2 Chitt.- PI. 484.

These authorities seem to be the better sustained on principle. The object of the action is to enforce the judgment against the same party against whom it was originally rendered. Under the rules of the common law above mentioned, he became personally bound by the rendition of the judgment, by reason of the presumption of assets. There it was but a direct enforcement of the judgment against him when he was sued in debt upon the judgment. Here the judgment establishes the debt, and can be enforced against him upon the further proof of acts rendering him liable individually to pay it.

Still it is the judgment which he becomes bound to pay, and which is sought to be enforced. It is said that the foundation of this action is the implied contract of the defendant to pay the judgment, and, therefore, that it is an “ action of debt, founded on a contract not under seal.” But the same authorities which held this, also hold that it is a case of tort, and the plea of not guilty is proper. 1 T. R. 462.

And this reasoning would have greater force if it were not for the fact that the judgment is sought to be enforced against the same party against whom it was originally rendered, and who is shown to have been liable to pay it at the time it was rendered. Such a case is not embraced in the 4th

section of the statute, but must come under the 8th section, and be regarded as an action of debt on judgment, which is not barred until the lapse of seven years. Consequently the plea of limitation of three years, under the 4th section, was no bar to it. Another ground of error urged in behalf of the plaintiff in error is, that on the trial the verdict did not find the amount of assets wasted, and the extent of the liability of the administra-trix was not ascertained; and that, therefore, no judgment could be entered on the verdict.

Many authorities are cited in support of this position; but they seem to be cases of original actions brought against the administrator in his representative capacity, and not actions for devastavit. Where the- declaration states the amount of assets, and it appears to be sufficient to pay the plaintiff’s claim, and the defendant demurs to the declaration, this is held, in an action for devastavit, to dispense with proof of the amount of assets, and sufficient to support a judgment. Hoggatt v. Montgomery, 6 How. 93.

Here the evidence showed assets and a devastavit to a greater amount than the judgment rendered for the plaintiff. The plaintiff’s demand, as stated in his declaration, was supported by sufficient proof, the extent of the defendant’s liability was clearly established, „and the judgment properly rendered. The last objection made is, that the defendant was not permitted to defend, on the ground that the sale was void, and that if the sale was void, the proceeds of it were not assets, but were held by her to the use of the purchaser.

It does not appear how the sale was alleged to be void, and this objection seems, therefore, to be 'a mere abstract proposition. But if it was void as to the heirs of the deceased, as is stated, it is shown by the evidence to have been acquiesced in and ratified by them, and that they received their portions of the proceeds. This would estop them from denying the validity pf the sale.

In fact it appears that one of the heirs himself became the purchaser, he representing one third for himself and another third for his ward, and for these amounts that he executed his acquittance to the administratrix, who held in her own right the remaining interest. Thus all interests were satisfied, and the validity of the sale placed beyond successful controversy.

But apart from this, after the administratrix had reported the sale to the probate court, received the money arising from it, and charged herself with it in her final account, it coaid not be permitted to her, when no proceeding was taken to avoid the sale, or to render her liable on account of any invalidity in it, to treat her own acts as illegal, and appropriate to her own use and to the heirs funds which, in law and justice, belonged to the creditors of the estate.' Upon a view of the whole case, we are of opinion that the judgment should be affirmed.