Contractors for Union Wharf v. Steamer J. H. Starin.

that company certain rights under which the Derby Railroad wharf, before mentioned, was constructed in 1874.

The evidence shows that ever since the decision in the Hemingway suit, the proprietors of the libellant's wharf have claimed to collect, and have collected, wharfage for the use of such wharf to transport thereon goods coming on to it from the basin wharf and goods going from it on to the basin wharf, which arrived by water in coasting-vessels or were shipped by water in coasting-vessels, and were discharged upon the basin wharf or laden from the basin wharf, except so far as the right to collect such wharfage was expressly parted with by the instrument before recited. It also appears that the libellant exclusively keeps in repair the part of its wharf which lies northerly of its junction with the basin wharf.

The affirmative defence set up in the answer is, that the basin wharf is a part of the mainland and a public highway; that the part of the libellant's wharf which is north of its junction with the basin wharf is a part of the mainland and a public highway; and that the wharf at which the steamer discharged and received said goods is more than three rods distant, to the eastward, from the libellant's wharf.

The question does not seem to be varied at all from what it was when the Hemingway case was decided, so far as regards goods in the situation of those involved in the present case, except so far as it may be varied by the fact that since then the canal basin has been filled up, so that what was then water has become land, continuous with the mainland inside, and continuous with the basin wharf on the outside. But the basin wharf was built and connected with the libellant's wharf by the permission of the libellant, and the libellant necessarily reserved all rights to wharfage which it did not expressly then part with. By the decision of the state court it had the right which is claimed in the present suit. That right was not parted with, in the grants to the canal company, or in the grants to the New York & New Haven Railroad Company, and the claimant can have

Contractors for Union Wharf v. Steamer J. H. Starin.

no better position as against the libellant in respect of such right than that company had or than the canal company had. The locus in quo of the discharge and shipment of the goods in this case is to the westward of a line crossing the basin wharf at a distance of four hundred and sixteen feet east from the libellant's wharf. The libellant does not make in the present case a claim, by virtue of any of the instru ments before recited, to any greater right than has been conferred upon it by statute, but only claims that while the right insisted on in this case was granted to it by statute, it has not parted with such right by any of such instruments.

The fact that the basin wharf is connected with the mainland by the filling in of the canal basin, or by the route thorough Brewery street, cannot vary the libellant's rights in the present case. The wharfage here claimed is for the use of the libellant's wharf by transporting the goods over it. If they had not been transported over it, but had been taken to or from the Derby Railroad wharf by the way of Brewery street, they would not have been subject to wharfage for being transported over the libellant's wharf.

On the evidence, the libellant's wharf must still be regarded as a wharf, in the part of it used by the goods in this case, so that the statutory rights given in respect to it remain, quoad such goods and their use of it, however much it may be a public highway in respect to goods not liable to wharfage for the use of it. If the libellant is usurping a franchise which does not belong to it, its title to such franchise can undoubtedly be tried by a proper judicial proceeding in the tribunals of the state. But so long as the libellant's wharf is used for the transportation over it of goods coming from the basin wharf on to it, or of goods going from it on to the basin wharf, which goods have been discharged from, or are afterwards laden on, a coasting vessel, at the point on the basin wharf where the goods in this case were discharged and laden, and so long as the decision in the Hemingway case stands as the interpretation by the highest state court of the resolves of the legislature, so long must this court maintain the claim made by the libellant in this case.

Contractors for Union Wharf v. Steamer J. H. Starin.

By the resolve of 1810, it is provided that upon neglect or refusal to pay wharfage after notice and demand, it shall be lawful either to sue for the same at common law, or to distrain therefor to the extent specified; and that the wharfage due for or on account of any vessel or the cargo thereof shall be and remain a lien on such vessel until the same shall be discharged. It is clear that the resolve means that wharfage on cargo is to be a lien on the vessel until such wharfage is paid. It is left to the vessel to see that it is made secure for its liability, which it can well do, having possession of the goods, and being able to take care either that they do not pass over the libellant's wharf, or, if they do, that the proper wharfage therefor is paid.

The claim to a lien for wharfage in this case is such a claim as is cognizable in admiralty. The use of the libellant's wharf facilitated the operation of the steamer in loading and discharging, to such an extent that the legislature thought fit to give a lien on the steamer for the wharfage dues prescribed for the cargo. The use of the libellant's wharf, as it was used in this case, pertained to navigation by water, to such an extent that the implied contract for wharfage, in respect of the goods, may properly be regarded as a maritime contract, of benefit to the steamer, and therefore one the lien given for which by the resolve is cognizable and enforceable in the admiralty. The Lottawanna, 21 Wallace, 558; Ex parte Easton, 5 Otto, 68; The Virginia Rulon, 13 Blatchf. C. C. R., 519. There was a sufficient notice and demand in this case prior to the bringing of the suit.

The libellant is entitled to a decree for $76.10, with interest thereon from July 1st, 1878, and for $80.73, its costs in the District Court, and for its costs in this court.

I do not understand the libel in this case as making any claim for wharfage founded on anything except the use of the libellant's wharf by the goods. It does not claim, in addition, that the steamer is liable for any wharfage prescribed for vessels, aside from the liability of the steamer for the wharfage prescribed for the goods. I therefore express no opinion on that question, nor on any question except the one distinctly involved in this case.

Davis v. Vansands.

THEODORE M. DAVIS, RECEIVER OF THE OCEAN NATIONAL BANK, v8. SARAH VANSANDS.

The plaintiff had recovered a judgment de bonis decedentis against an administrator of a solvent estate, upon a claim which accrued after the death of the intestate and after distribution of his estate by order of the probate court, and which could not from its nature have been exhibited against the estate during the time limited by the court of probate for the exhibition of existing claims. Execution having been returned unsatisfied, the plaintiff brought an action of debt upon the judgment against the administrator, suggesting a devastavit, in order to obtain a judgment de bonis propriis. The suggested devastavit was a failure by the administrator to take from either of the dis tributees the bond authorized by Gen. Statutes, tit. 18, ch. 11, art. 2, sec. 9. Held that, in view of the history of the statute, and of the practice under it, the administrator was not guilty of a devastavit from the mere fact that such a bond had not been taken.

It being incumbent upon the administrator to take the steps necessary to obtain money for the payment of debts, he can, as a general rule, obtain an order from the court of probate, where personal estate has been exhausted or has been distributed, and after distribution of the real estate, to sell so much of the real estate in the possession of an heir or an alienee as may be necessary to pay a debt which has accrued after the death of the intestate, and which could not from its nature have been exhibited against the estate within the time limited for the exhibition of claims, and which has since been duly presented for allowance as provided by statute.

The heir whose land is sold under such an order may have contribution from the other heirs equali jure.

A court of probate in Connecticut does not possess adequate power, after distribution, to enforce payment of this class of claims from the personal estate which had been distributed under its order to heirs or legatees.

The administrator who has conveyed personal estate to the heirs in obedience to the order of the court of probate, and not by his voluntary act, can bring a bill in equity to compel the heirs who have received such estate to contrib ute to the extent of the estate so received, and pay such newly accrued debt and the expenses of the administrator in defending against the claim. Such a bill is sustainable although unsold real estate is in the possession of the heir or alienee.

The creditor whose right of action accrued after the time limited by the court of probate for the exhibition of claims, and who has obtained judgment against the administrator or executor in a suit instituted within the statutory time, can proceed by bill in equity against the heirs and legatees of a solvent estate, who have received personal estate, for contribution to the payment of the judgment to the extent of the estate which they have received. If both real and personal estate have been distributed, it is not necessary that the real estate should be exhausted before the creditor can bring his bill in equity for contribution.

Davis v. Vansands.

Whether real estate in the possession of the heir can be subjected to the payment of such a judgment by scire facias: Quære.

ACTION of debt on a judgment; in the District Court of the United States for the District of Connecticut, February term, 1879. The case is fully stated in the opinion.

W. Howe, for the plaintiff.

C. E. Perkins, for the defendant.

SHIPMAN, J. The plaintiff, as receiver of the Ocean National Bank, heretofore recovered judgment in this court, payable out of the estate of the intestate, against the defendant as administratrix of the estate of Horace Vansands, for the amount of an assessment upon the stock of the intestate in said bank. The claim of the plaintiff accrued after the time limited by the court of probate for the presentation of claims, and after the distribution of real and personal estate of about the value of $33,000 among his heirs under the order of the probate court.

The facts were similar to those in the case of Davis v. Weed, 44 Conn., 569. Execution was issued and was

returned unsatisfied.

The plaintiff has now brought an action of debt upon the judgment against the defendant as administratrix, suggesting a devastavit. Judgment is sought de bonis propriis. If the defendant has been guilty of waste and mismanagement of the estate and effects of the deceased, she is liable in this form of action. Wheatley v. Lane, 1 Wms. Saunders, 252, note 2; Olmsted v. Clark, 30 Conn., 109. The devastavit which is suggested in the declaration is that the defendant did not exact and receive from either of the distributees the bond, which is authorized by the statute, (General Statutes of Connecticut, 374,) with surety to the state, to the acceptance of the court of probate, conditioned that if, after the settlement of the estate, debts shall appear and be allowed, he or she will pay to the administratrix his or her proportional share of such debts and of the charges of the administratrix.

VOL. XLV.-76