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

ing. And, indeed, without this finding, the decree would not have that effect, or any other, to prejudice the rights of the plaintiffs, for obvious reasons. It was a proceeding wholly ex parte, without mutuality, and founded on the debtor's false or mistaken statements. It can, therefore, have no operation here. 1 Stark Ev. 185, 195.

144] *DILLE, for defendants:

The power and duties of an administrator in this state are defined by statute, and not as in England regulated by the usages of the spiritual courts and the principles of the civil law. Our statute, passed January 25, 1816, provides, that if after an adminis trator has been appointed, "it shall appear to the court that any last will and testament was made by the deceased, and the executor, or executors, therein named shall prove the same agreeably to law, and request letters testamentary thereon, then the court shall require the administrator, or administrators, to deliver such letters. of administration, together with his or their proceedings, to the satisfaction of the court." 14 Ohio L. 151. The "act defining the duties of executors and administrators," passed February 11, 1824, makes no material variation from the act of 1816, in this respect. In England, it was formerly held that "if the testator makes a will, and the ordinary, without taking notice of any such will, grants administration to another, and afterward the executor comes in and proves the will, such executor shall regularly avoid all mesne acts done by the administrator," and the reason which is given is, "that the executor, by being made such, had an interest which the ordinary could not deprive him of." Plow. 277; 2 Bac. Abr. 411. And it still seems to be the doctrine, from the same authority, that the administrator is liable under such circumstances to the executor in an action of trespass, even though the will was not discovered until after administration granted; but if, in such case, "he paid debts, legacies, or funerals, which the executor was bound to pay, he shall recoup so much in damages." Now, compare these principles with the provisions of our statute, and we will find that the common, or rather civil law maxims, do not apply in a case of this kind in this state.

But if the analogies of the common law have any weight here, it may be well to inquire what were the decisions in case administration was improperly granted, afterward revoked, and a new

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

administrator (the next of kin, or such other person legally entitled) is appointed. In Packman's *case, 6 Coke, 18, it was [145 decided that even though the first administrator fraudulently sold the goods of the deceased during the pendency of a citation to revoke his power, in order to defeat the plaintiff in the spiritual court of the effect of his suit, that the first administrator had the absolute property of the goods in him, and without question he might give them to whom he pleased. If the gift be by covin, it shall be void by the statute 13 Eliz. against a creditor, but it remains good against the second administrator.

I have cited the above provisions of the statute, and the case of Packman, from Coke, to support me in this position, that the administrator, who is appointed, and takes upon himself the administration of the deceased's estate, before the discovery of the will, has such a property in the personal estate of the deceased, and such authority over his personal rights, that his acts are of such validity that they shall bind the executor who succeeds him. And this I strongly infer from the statute, which requires such administrator to return to the court his proceedings. And this is required that the court may know how far he hath administered, how far he is liable to be charged, and how far such executor may be exempted from liability by reason of such former administration. If, then, this position be correct, how does this case stand? For I presume it will not be denied that when administration is granted to a person who is the debtor (by bond, for instance) of the intestate, that the amount becomes merged, and the amount due upon it is chargeable upon the administrator as so much assets in his hands. It must be merged from necessity, for assets, to that amount, are, in truth and in fact, in his hands, and the bond can only be referred to as evidence of the amount. The administrator can not bring suit against himself. The making of him administrator is the act of the law, and the merger of the bond is the effect consequent upon that act. Now, when Elihu Bigelow administered upon the estate of Oliver Bigelow, deceased, this bond came into his hands. It became a debt which he owed unto himself, because the obligor and obligee were united in one and the same person. Yet if he failed to account for this sum, he was liable, either to the executor who succeeded him, or to the creditors of Oliver Bigelow, upon a devastavit (see also Packman's case), or upon his administration *bond. So did he consider it when he charged himself [146

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

with the amount due upon the bond in the inventory which he returned to the court; and so was it considered as well by the court as himself, when he petitioned, under the "act providing for the execution of real contracts in certain cases," for a completion of this contract. The court were satisfied that the bond was paid, because they knew that the money was in the hands of the only person then known who was entitled to hold this bond, or who had the property of it. Upon this the court was authorized to declare, in the minutes of its proceedings, that it was satisfied that the bond had been paid, and to direct a person to make a deed pursuant to the contract. This was the situation in which the plaintiff, as executor, found the estate of his testator, when it came to his hands, after the partial administration of Elihu Bigelow. And if the position which I endeavored to establish in the foregoing part of this argument be true, that the executor, in a case of this kind, is bound by the acts of his preceding administrator, then the bond in this case was so merged that the present action could not be maintained upon it, and the verdict should be set aside. It is not important to this inquiry to determine how far the defense upon which the present defendants rely, would have been waived, if they, as the personal representatives of Elihu Bigelow, deceased, had, ignorant of the law, voluntarily surrendered to the present plaintiff the bond in question; for the jury have found that it was obtained by him without the consent of Elihu, or of his adminis trators, so that no right has been waived-no defense abandoned. It was argued at bar, that were the bond in this case merged, it would destroy the lien of the heirs of Oliver to the land. But what is the nature of that lien? In all cases of this kind it may be extinguished by the act of the administrator. For as soon as he receives the whole amount of the purchase money, equity declares the lien to be at an end, and decrees a conveyance of the legal title to the obligee. And the law will not studiously support a bare right that is attended with neither advantage nor value. The bond is the property of the executor or administrator, and though the legal title be in the heirs to strengthen their lien, yet he may at any time extinguish and forever defeat it.

147] *By the COURT:

The first question made is, whether the appointment of a debtor

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

administrator extinguishes the debt, and eo instanti turns it into assets.

Secondly. If the debt is only suspended, whether the application for a deed by the administrator to himself, as obligor, and an order granted, destroy the right of action on the bond.

In this case, it appears that during the lifetime of Oliver and Elihu Bigelow, they entered into articles of agreement, by which Oliver covenanted, upon the payment of a certain sum of money by Elihu, to execute a conveyance for a tract of land therein specified. A part of the money was paid in the lifetime of Oliver. Administration on his estate was granted to his brother Elihu.

It is now a well-settled principle that if a creditor make his debtor executor, it is not absolutely an extinguishment of the debt, but remains as assets in his hands. Dorchester v. Webb, Croke Car. 372. It is, however, quasi a release at law, because he can not be sued. 1 Com. Dig. 337. The same rule must apply to administrators who can not sue themselves any more than executors. Both are trustees; the one under the law, the other by the appointment of the testator. In the principal case, a will was discovered and admitted to probate, and the administrator was superseded by the executor. Counsel suppose the debt or duty was only suspended, while the debtor was acting as administrator, and that a right of action immediately accrued to the executor when the bond came into his possession. The law appears to be otherwise. Personal actions once suspended are always suspended. Croke Car. 372. If the bond was once assets, no act of the parties could turn them back to an obligation. Chief Baron Comyn, who is himself said to be an authority, has recognized the principle as a sound one that a personal thing suspended is extinct. 1 Com. Dig. 337. The principle under consideration was decided in Winchop v. Basset et al., 12 Mass. 199, the court says, "the executor having voluntarily assumed the trust, which prevents any one from suing, and being unable to sue himself, he shall be considered as having [148 paid the debt, and as holding the amount in his hands as administrator." By the same case, securities in the bond were considered accountable for such assets. The discovery of a will, and the appointment of an executor, only operate as a repeal of the grant of administration, which did not avoid all mesne acts. A repeal upon citation, although the goods were sold pendente lite, does not render the act void. Croke Eliz. 458; Salk. 38. Consequently the applica

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

tion, on the part of the administrator, to have the contract specifically executed, and the record of proceedings under it, are not rendered void by the discovery of a will and the appointment of an executor, who accepted the trust. Every act of the adminis trator has the same validity as if he had not been superseded, but had continued to perform his duties until final settlement and distribution of the estate. But the record of the proceedings, upon the petition of the administrator for a deed, is conclusive against the right of recovery in this action. The court had jurisdiction, and have found the payment of the money, which can not be controverted, unless this order or decree is void, and this is not pretended; it, being a solemn judgment of a court of competent jurisdiction, is no longer open for controversy. The decree can not be open for inquiry, whether the obligee made payment or not. The court has already adjudged that, and the record shows it. A judgment of the law is not to be controverted by collateral matters, for they are intended. 6 Cok. 38; 11 Mass. 227; Jackson, ex dem. Goforth, v. Longworth, 4 Ohio, 129. We can not in this collateral way go into an inquiry concerning the propriety or impropriety of extending the equity of the statute to an obligee who is administrator. The policy of admitting a trustee of the law to make this application, where his personal interest must come in conflict with his representative duties, would, as an abstract principle, be very questionable; but the decision has been made, and in this action can not be controverted.

The legal maxim, omnia præsumuntur rite et solemniter esse acta, donec probitur in contrarium, applies with force to this as well as to every other record. The court are of opinion that the facts agreed are conclusive against the plaintiff's right of recovery upon this 149] bond. Circumstances may exist which enable the heir or creditor to be relieved against the effect of this order or decree, by applying to a different jurisdiction.

Judgment of nonsuit.

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