Gordon v. Clapp

The principal question, that is raised by the bill of exceptions allowed by the County Court is, whether the receipts, offered in evidence by the defendant, were correctly admitted by the Court on the plea of payment. There is no Suggestion, but that receipts thus *133•given -to this defendant, after the dividend was struck by his procurement, would be proper evidence upon his plea of payment. But these receipts were executed in the days of the original administrators of the estate of said Gordon; and were given by the plaintiff to said original administrators. It is urged from these circumstances, that the defendant can derive no benefit from them. And it seems to be supposed by the plaintiff’s counsel, that the allowance of these receips to the defendant, would operate as a gift to him; or as they express it, he would pocket the money. We think this supposition not correct. It does not appear, whether the defendant exhibited these receipts before the Court of Probate to be treated as so much money, when the dividend was struck, or not; or whether he then knew of them, or has since discovered them. If he had them in his possession, it might not be prudent for him to take upon him the risk of their being genuine, and actually operating for his benefit as payment, before the close of the controversy about them, which has since arisen. But if they are allowed him as payment in this case, he must account for them as so much money; and their amount may be a fund for another dividend.

Whether these receipts being evidence of payments and made by the former administrations, and not by the defendant, makes any difference about their being allowed as payment in this action, depends upon the nature of the whole transaction, including the character of the receipts rthemselves. The receipts contain incontrovertible evidence, that the plaintiff has long ago received two hundred and fifty-nine dollars towards such demands of his against the estate of said Alexander Gordon deceased, as he considered himself entitled to a dividend upon. Two of the receipts mention the demand as being against said Alexander Gordon, and one Samuel Davenport. This was alluded to in argument as possibly making a difference. But <it makes no difference. It was a demand against the estate of the deceased, and forms a part, at least, of the claim now sought to be recovered. This payment to the plaintiff was received by him of Philo Berry and Polly Gordon, as administrators of the said deceased. It was, therefore, paid °ut of the property of the deceased. It certain- *134> Iy must be so treated for every purpose, until their account of their administration is settled before the Court of Pro- ~ bate. By reason of this, so much Jess property of the deceased, in presumption of law, has come into the hands of the defendant to be administered, unless these receipts are to be treated as property; and if to be so treated in any way, it must be in the way attempted in this defence. Moreover, the very terms of these receipts point to the event of a dividend struck, and these to be treated as payment of such dividend, in whole or in part. One receipt contains this stipulation": “and if the said Alexander Gordon’s estate shall prove insolvent, and the sum which the said Willard has received, amounts to a greater sum than said Alexander’s estate shall be adjudged by law to pay; then the said Willard promises to refund and pay back to said administrators all such sums of money, as he has received more, than the estate will pay.” Another of said-receipts varies on this wise : “ If I have received more than my dividend, then I promise to refund &,c. all I have received more than the dividend allowed bylaw.” If the plaintiff cannot be compelled to allow these receipts as payment of a dividend, neither could he be compelled to allow them in part payment of his debt, if the defendant had found property of the deceased sufficient to pay the whole claim, instead of a dividend, merely. Indeed, it is not ea- . sy to conceive of any other method of compelling the plaintiff to account for the amount of these receipts, half as plausible as the one now adopted.

These receipts being in possession of' the defendant it must be presumed, that he received them from the former administrators, as he received any other evidences of property, and, probably, this delivery over to the defendant would be good accounting by the former administrators, in a suit against them or their bondmen, so far as the amount of these receipts, or the property paid to the plaintiff to procure these receipts.

The counsel have slightly glanced, in argument, at the evidence, offered by the plaintiff and excluded, of a large property wasted by said former administrators, belonging to said estate. This was not strenuously insisted upon; and there seems to be no ground for the argument. An *135administrator de bonis non is only liable for the property of the deceased, which he actually receives, or might receive by using good diligence in search. He cannot be made liable for the property, wasted by the former administrators. He must make and exhibit an inventory of all the property he can find, just as if he were the original Administrator. I see no reason why he must not inventory all he can obtain from the original administrator. He assuredly must account for it in some way before the Court of Probate. See Stat. p. 340.

But, if any thing could be realized in any way from the waste, committed by the former administrators, it could no.t operate for the sole benefit of the plaintiff, but must be a fund for the proportionate benefit of all the creditors'.

The exceptions show, that the plaintiff further offered to show his acting and expending money at the request of the defendant, and in aid of his administration. This was1 objected to and excluded. That this is a claim against the defendant as an individual, and not one, that can come in upon his administration bond, and be a charge upon his bail, is too plain to need comment, or illustration.

The judgement of the County Court is affirmed.