Doan v. Hine's administrators

By the Court,

If the defendants, after taking a reasonable time for inquiry, had refused either to acknowledge the justice of the claim, or to refer the matter in pursuance of the statute, and had then suffered judgment by default, the plaintiff would, I think, be entitled to costs. The provision for a reference was made for the benefit of the creditor, as well as the representatives of the deceased, and a refusal to refer is made one ground for awarding costs. 2 R. S. 90, § 41. I do not say that the executor or administrator is bound to refer under all possible circumstances; but as a •general rule, he ought not to decline that mode of •testing the validity of a demand which he is not prepared to admit. There were evidently no special reasons in this case for desiring a trial according to the course of the common law, for the defendants suffered judgment to pass against them by default.

Although the defendants at the time had no assets in their hands for the payment of the debt, the plaintiff had a right to know whether it would be paid in the due course of administration, to the end that he might take the proper legal measures for asserting his claim, if its justice was denied.

*641In Swift v. Blair, 12 Wendell, 278, the executrix refused to arbitrate—not to refer; and on that ground the motion for costs was denied. But according to the - affidavit of •Cole, one of the administrators, the validity of the claim was substantially admitted, and there was no occasion for either a reference or a suit against the administrators to establish the demand. As there were then no assets, the plaintiff was entitled to nothing more than a reasonable assurance, that the debt would be paid in the due course of administration. Besides : the suit seems to have been brought, before any answer had been given to the equitable proposition, that the plaintiff should first proceed against the principal debtor—the administrators holding themselves responsible for- any balance that might not be collected in that way. There is some conflict in the affidavits ; but the plaintiff, at the most, has only made out a balanced case on the question of costs, and°that is not enough.

Motion denied.