Ex'r of Bigelow v. Adm'rs of Bigelow.

was due on this article to Oliver Bigelow the sum of one hundred and eighty dollars. Whilst acting as administrator, Elihu petitioned the court, under the statute, to complete the contract by ordering a conveyance, in which petition he alleged that the whole purchase money was paid.

Subsequent to this Elihu died, and the defendants became his administrators. It was also ascertained that Oliver left a will appointing the plaintiff his executor, who proved the will, and took letters testamentary. And having by some means obtained possession of the article of agreement, instituted this suit.

At the trial the jury found a special verdict, finding that the article was the deed of Elihu Bigelow, and that there was due upon it, to the estate of Oliver Bigelow, the sum of three hundred and nine dollars and sixty cents. And that the present plaintiff obtained the article without the consent of Elihu Bigelow or his administrators. Upon this special verdict, and an agreement of the other facts stated, the cause was reserved to be decided here.

*H. STANBERY, for the plaintiff:

[139 The facts of this case are few, and yet so singularly complicated as to require a careful investigation. The principal difficulty is occasioned by the debtor of the intestate becoming also his administrator. There is one fact found by the special verdict, which must be taken as established, that the bond debt has never been actually paid.

The plaintiffs, who represent the obligee, have prosecuted their action upon this obligation. They show that a part of it is yet due, and this they claim to recover. The manner in which they possessed themselves of this instrument is wholly immaterial. If it evidence a subsisting debt due to their testator, or rather to them as his representatives, it of right belongs to them, and their title to it can not be disputed, at least in this action. It is unnecessary to cite authorities to this position. The well-known case in Vernon's Reports, in which the person who had stolen his deed from a counselor's table, and was enabled to protect himself with the legal advantage it gave him, will be recollected.

The plaintiffs then, affirmatively, show a right to recover on this bond. Let us see what the defendants have to object to this recovery. They say that when Elihu Bigelow, the obligor, became the administrator of Oliver Bigelow, the obligee, eo instanti, the bond merged, and the amount due upon it became assets

in his hands. This ground can not be maintained as a defense to this action.

It is clear that the debtor obtains no advantage of his creditor, by administering upon his estate. He does not stand in the situation of a debtor appointed the executor of his creditor. In that case the old authorities are, that if the estate be solvent, the debt is absolutely merged and satisfied. Needham's case, 5 Co. 30. In the modern cases, it is not held to be an extinguishment of the debt in any event, except there be a plain intention to that effect expressed in the will. But it has never been held that the granting of administration to the debtor worked this merger. 8 Co. 136; 1 Roll. 934; 1 Sid. 79; 1 Salk. 306, n. A. The distinction between the cases is obvious. In the first, the executor being appointed by the testator, he was taken, if nothing to the contrary appeared on the 140] will, to have intended a release of the debt, as a *recompense for the trouble cast by him upon the executor; but the administrator not being appointed by the deceased, no such intention can be presumed. Com. Dig., Adm'r, 336, 337.

This debt was, then, not extinguished by this act, nor was it prejudiced. The taking of administration by Elihu, the debtor, was of his own motion. The law will intend it to have been for the benefit of his intestate, and will not suffer the estate to be prejudiced by the legal consequences of that act. But the administrator can not sue himself, to recover the debt which is due from him individually, to the estate, or rather to himself in his representative capacity. This inability to sue would give him, as debtor, an advantage which the law will not tolerate; and therefore, in favor of the estate, the creditor or heir may, if either choose to do so, hold him accountable for the amount of his debt as assets. But the debt is not to all purposes considered as assets. In reality it continues a debt, inasmuch as it is not actually paid, and therefore, although the administrator, for the purposes of justice, is estopped from denying that it is assets, yet his securities are not. They are only liable for debts actually collected by him, or which he might have collected by proper diligence. Their liability is not altered by the administrator being the debtor. If the administrator were, for instance, insolvent, they would not be charged with this desperate debt. They do not guaranty his responsibility as a debtor of the estate, but only his honesty and the faithful discharge of his duties. I have gone into this detail, preparatory to

Ex'r of Bigelow v. Adm'rs of Bigelow.

a view of this case in the light in which it should be regarded for the protection of the estate, the creditor, and the heir.

Before Elihu Bigelow connected himself with this estate, as administrator, he was a debtor to the estate by bond, for the pay. ment of the consideration of a tract of land which he had purchased of Oliver Bigelow. The legal title to the land had beer retained by Oliver, as security for the unpaid purchase money, and passed, at his decease, to his heir. This debt did not then rest upon the personal responsibility of Elihu; a fund was appropriated and retained for its security, over which the creditor had given the debtor no control, and which the law will not take from him until his debt be paid. Elihu administers upon the estate of Oliver. His *debt is not extinguished by that act, nor is it actually [141 paid. Indeed, Elihu as administrator, does not treat it as then paid. He does not place any money to the credit of the estate, as representing that debt. He does not charge the estate with any money paid out of his own funds on account of it, but he places it in his inventory on the footing of an unpaid debt.

It is contended that this act of administration operated an entire transmutation of the rights and liabilities which, prior to it, were incident to this bond. It is said, that although the debt is not extinguished, yet that the bond is merged, and can only be used to ascertain the amount. That it stands as if the bond were actually paid in full, and the amount of it has become assets; money col lected and in the hands of the administrator; and that the individual obligor was discharged from all liability; his bond satisfied, and he of course entitled to a conveyance of the land, and put in a situation with regard to the fund, that enables him to control it, and place it beyond the reach of the original claim. These consequences would be manifestly injurious to the creditors and heirs of the estate; the fund is gone, and in the place of it is substituted the mere personal responsibility of Elihu Bigelow; for, I repeat it, in case of his insolvency, his securities could not be made to answer this debt. And this wrong is accomplished by the debtor himself. The heir and creditors are in no fault; they are not chargeable with any laches; they have done no act to alter their debt, and especially during the continuance of his administration, they never treated the debt as modified or paid. They did not choose to hold Elihu responsible for the money as actually received; and as soon as his administration is determined, the lawful executor of Oliver VOL. IV-9 129

Ex'r of Bigelow v. Adm'rs of Bigelow.

Bigelow insists upon the bond, and refuses to be subrogated to an action for the money.

There is nothing, then, in the acts of the parties, to modify this debt, and under such circumstances, as a modification would work an injury to the estate, the presumption of payment to the administrator, which is made for the benefit of the estate, will not be applied.

It seems to me that the only necessary effect of the administration upon this debt, was to suspend the right of action. Whether 142] it should be considered paid and assets, would *depend upon the consequences of that presumption. If it were a debt originally resting on the sole responsibility of the debtor, the presumption of payment would be made, for that would place it upon the same footing; but if the debt originally were strengthened with other security, it would not.

Suppose a bond secured by mortgage. The obligor, who has no estate but the mortgaged premises, administers to the obligee. According to the doctrine of the opposite counsel, that act, by an inevitable necessity, carries with it a presumption of payment and merger of the bond. The bond is the principal, and the lien on the land, which is but the incident, is gone with it, and there remains the personal responsibility of the administrator, which the intestate, at the creation of the debt, would not rely upon, and which, in fact, is not worth a rush.

Another case suggests itself. A trespass upon the real estate of the intestate before his death; the trespasser becomes the admin. istrator. What is the consequence with regard to this debt? It is not extinguished, nor can the presumption of payment apply to it, on account of its uncertainty. During the continuance of the debtor's administration, it can not be prosecuted by action, but as soon as his administration determines, it may be recovered by those who come after him and represent the estate; otherwise manifest injustice is done by the act of the debtor, and this the law will not tolerate. The same difficulty of applying the presumption of payment, occurs in all debts which happen to be uncertain and unliquidated in amount. These cases in illustration show clearly that this presumption is not necessary and inevitable, and that the right of action upon the original claim may survive, where the purposes of justice require that it should. Indeed, there are many instances where a right of action is temporarily suspended, and yet after

Ex'r of Bigelow v. Adm'rs of Bigelow.

ward capable of being asserted. Between an intestacy and the granting of administration, there is a total suspension. So in the case of an alien enemy, and others of a temporary disability. But again, this presumption of the payment of the debt, and that it is resolved into assets, is made for the particular emergency. The reason and propriety of its operation cease when the emergency is passed.

*The administration of Elihu Bigelow was temporary, and [143 the estate was not settled in his hands. The present plaintiffs have succeeded him, and finding this bond, instead of the supposed assets, have brought their action upon it. There is now no necessity for the legal presumption. The debtor has lost his character of creditor. He stands as he did before he administered, and so does the debt, for in fact it is yet due. Will the court, then, by a mere fiction of law, made for the benefit of the estate, and not intended to operate, except from an instant necessity, now when its operation is not needed, and would work an injury, oppose it to the recovery of this claim? And to what purpose, but to lead to multiplicity of action and the jeopardy of rights.

And here, however strong the presumption that the debt has become assets, might be of itself, yet now it can not be made. The special verdict is express, that the bond is now due; against that no presumption can be made.

It is further contended that the statement of Elihu Bigelow in his petition for a deed, and the finding of the court, show a payment of the debt. That anomalous proceeding can have no effect in any imaginable point of view upon this case as it now stands. The decree as stated in the defendants' notice was never carried into effect. It must either be referred to as evidence of the payment of the bond, or as an adjudication by which the bond was merged.

Suppose it to be proper evidence of the payment, it is evidence in relation to a fact established beyond controversy, by the special verdict, and which can not now be contradicted. This is not a motion for a new trial, on the ground of a verdict contrary to evidence, or by reason of newly discovered testimony. Any matter, then, to impeach the facts found by this verdict can have no relevancy.

The same objections go against the decree as evidence of a merger of this bond, for the jury have found it to be still due and subsist