Mowry v. Steere

delivered the opinion of the Court.

The question in this case is, whether the defendant’s title is absolute, or is subject to a lien, to be enforced by the administrator in favor of those creditors of Russell Aldrich, whose claims have been allowed by the commissioners. This depends entirely upon the statutes. By an English statute, passed in the reign' of George II. in 1732, extending, by its terms, to the colonies, the real estates of deceased persons were made liable for debts upon suits in favor of creditors, in which the land might be attached. It was found, that the practical effect of this act was a very unequal distribution of .the estate of the deceased among the creditors; and, expressly to remedy this evil, the act of 1738 was passed, entitled “ An Act for the equal distribution of Insolvent Estates.” By this act the administrator was required to represent the condition of the estate to the Town Council (then exercising probate jurisdiction,) before making payment to any creditor, and commissioners were to be appointed to ascertain all the claims, with a view to an equal distribution of the estate, real and personal; and creditors, who neglected to prove their claims before the commissioners, were barred from any dividend out of it. It was also provided that the ad^-ministrator, upon due proof of a deficiency of personal property to pay the debts, should be licensed by the Supreme Court to sell the real estate for their payment.

In the Digest of 1798, a provision was introduced, *425 “ that the real estate of all persons deceased should be liable for the payment of their just debts by actions to be brought against the heirs at law or devisees of such estate,” and the manner of attaching and selling the same was prescribed. It was also provided that no action should be brought against any such heir or devisee, within three years after the probate of the will or administration granted, and that “ nothing in that act contained, respecting the bringing of actions against heirs and de-visees, should interfere with, prevent or obstruct the settlement of'any estate, whether solvent or insolvent, by executors or administrators, in manner bylaw provided.” By a subsequent enactment it was provided, “ that when the goods and chattels of any person deceased shall not be sufficient to pay the just debts, which the deceased owed, the expenses of his funeral and of supporting his family and settling his estate in manner prescribed by the act," the Supreme Court should license the administrator to sell the real estate to make up the deficiency.

By another provision, (Dig. of 1822, p. 224, sec. 2,) the heir is prohibited" from selling or encumbering the estate, within three years and six months after probate of the will or administration granted, but the same may be sold by the executor or administrator, if necessary, as prescribed by the act, provided however that, after the expiration of three years and six months, the heir or de-visee may aliene, and the same shall not be liable for debts in the hands of the purchaser thereof or any other person.

It is claimed, as between the administrator and the attaching creditor, that, if at the expiration of three years the administrator has not procured a licence to sell and has not sold, his power to sell ceases, and the right is *426 given the creditor to attach and a sale under such attachment passes an absolute title to the purchaser. But the difficulty in this construction is that there is six months, after the time when the creditor may attach, within which the heir is prohibited from alienating or encumbering the estate, and within which it is expressly provided that the administrator may sell. If in this intermediate period the creditor attaches, as he may, and the administrator sells, as he may, what is the consequence ? Will the attachment defeat the administrator’s power to sell ? It is expressly provided that this right of the creditor shall not interfere with or obstruct the administrator in the settlement of the estate, and, as there can be no interference with the administration of the personal assets, the interference must be at this point or no where. During this intermediate period, then, the right of the attaching creditor is subject to that of the administrator. But if there is such a period at any time, after the creditor’s right to attach has accrued, there is no difficulty in extending the period to any time required for the protection of the creditors, who have proved their claims in the faith that the estate would be first applied to their payment.

But it would seem by the terms of the act, that if, at the end of three years and six months, the heir or de-visee sell the estate, it is no longer liable for debts ; but, at the same time, it is provided that the estate shall be distributed among those, who prove their claims before the commissioners. Was it intended that under such a sale by the heir or devisee, the estate and the proceeds of the sale should be discharged from the claims of the creditors ? By another provision the real estate of any person deceased may be divided among his heirs at law or devisees after, and not before, all debts and funeral *427 charges are paid. And it is also provided, as between the heir or devisee and attaching creditor, that if the estate be aliened, the heir or devisee shall be personally liable for its value ; showing that the alienation was not intended to defeat even such creditors as had neglected to prove their claims before the commissioners. Now, it cannot be supposed that such creditors were intended to have an advantage over those who had used greater diligence to entitle themselves to a dividend out of the estate. While, then, the estate remains unaliened it must be subject to the power of sale of the administrator.

The defendant’s counsel have cited the case of Nowell v. Nowell, (8 Maine, 220,) in which an application by an administrator for license to sell the real estate of his intestate to pay the expenses of administration was denied. The Court rest this denial on three grounds, none of which apply in this case. First : by the laws of Maine, no lien exists for the expenses of administration ; but our statute authorises a sale for this purpose and for the payment of funeral charges and the support of the family for six months. Second : the Court held, there had been unreasonable delay by the administrator, and, the real estate having long since been divided among the heirs, they would be injured by the license. It was assumed that there was no express limitation of the duration of the lien and the Court, in view of the inconvenience that might result to the heirs, if the administrator might delay to close his administration until after the estate had been divided amongst them and then enforce the lien, say that the discretionary power of the Court is to be invoked to prevent this evil by a refusal of the license. But in this case that discretionary power has been exercised and *428 the license granted, whether wisely or not, it is not for us to determine.

A third ground was that all debts were barred and the administrator not liable to pay them and, if he paid, ought not to have power to sell. But under our statute, in case of insolvency, the creditors proceed not by suit at common law, but prove their claims before the commissioners, whose report, when allowed by the Court of Probate, is in the nature of a judgment in their favor, to which the bar of the statute does not apply. Having proved their claims in this manner, the creditors are entitled to have the estate, as far as it will go, applied to their payment. It is no objection, as far as these debts are concerned, that the administrator has the shield of the statute against debts not so proved.

In the case cited of Nowell v. Nowell, the Court say, “ that the law has a fixed period, by the expiration of which it seems to be contemplated, that the estate should be closed referring to .the four years, when suits against the administrator are barred, that the Courts in Massachusetts have uniformly refused to grant licenses to sell for the pui'pose of paying debts, after four years, unless extraordinary circumstances render it proper, and it is expected that the administrator will thereafter speedily close. But, if on seasonably closing at the expiration of the four years, or within a reasonable time thereafter, there should be a deficiency of personal assets to satisfy his administration account, the real estate might, in the discretion of the Court, be holden for the deficiency.'

Whether the statute of 1758, for the equal distribution of insolvent estates, was intended, and was understood, to put an end entirely to attachment by creditors, is not clear; its effect must have been to postpone such debts to *429 those proved under the commission. The inference would be, that the statute of George II. 1732, was rended entirely inoperative, from the fact, that it was thought necessary in 1798 to make an express enactment, giving the right of action to creditors who had not proved their debts. If so, since they could not proceed ag dnst the administrator, it was necessary to give them some remedy against any estate, which might be remaining after other debts had been satisfied. It could never have been intended that those creditors, who had neglected to prove their debts, should by commencing a suit against the heir obtain priority.

Tire attachment in this case, therefore, is no bar to the plaintiff’s right to recover.