1. Although, by the statutes of Maryland which are in force in
that part of the District of Columbia which makes the County of
Washington, judgment against an administrator for his testator's
debts should be entered only for assets as they shall come into his
hands, still a judgment in the ordinary form will not prevent the
creditors' filing a bill to charge the realty where the record
shows that after such judgment, the auditor of the court has, in
pursuance of a reference by the court to him, found the personalty
insufficient to pay the debt, and that recourse must be had to such
realty.
2. The law governing there makes the proceeding against the
administrator and the heir, when the latter proceeding is
necessary, entirely independent of each other. If it be necessary
to resort to the realty to discharge debts, a proceeding against
the heir must be instituted, and in that case whatever has been
done by the administrator is without effect, as to the property
sought to be charged. A judgment against the administrator is not
evidence against the heir, and the demand must be proved in all
respects as if there had been no prior proceeding to effect its
collection.
3. When a will imposes on an executor, who is named, duties
foreign to those which come within the scope of an executor's
ordinary functions, such powers do not pass to an administrator
unless it be clear that it was the intention of the testator to
make him a donee of the power.
4. A mere administrator, not the donee of such a power, cannot
plead the statute of limitations to defeat a suit brought on a
judgment by a creditor seeking to charge the realty with his
debt.
5. The three months allowed by the 69th of the Rules in Equity
for the
Page 76 U. S. 487
taking of testimony has reference to the taking of testimony by
both parties -- defendants as much as complainants. It is for the
court below to decide whether further time shall be given or
refused, and ordinarily the determination of the question would not
be deemed a fit subject for review by this tribunal, though cases
may occur of so flagrant a character that it would be its duty to
interpose.
6. It refused to interpose, though the court below had been
prompt in setting down a case for hearing, the case having been one
by a complainant having a pretty plain right, from the enjoyment of
which he was kept by a defendant in possession, who had been
contesting the case for eighteen years with great pertinacity, and
with the interposition of all kinds of technical objections.
7. The necessity of an order for the sale of real property to
pay debts being clear, the court may direct an ascertainment of the
whole amount of the testator's liabilities when the sale is
confirmed. It is not indispensable that such ascertainment have
been made before the sale was ordered.
By certain ancient statutes of Maryland in force within the
District, [
Footnote 1] it is
enacted that in suits against an administrator, he need not plead
plene administravit nor anything relative to assets, and
that he shall not be burdened further than these have come to his
hands; but that after verdict against the administrator, the court
shall assess the
pro rata which he ought to pay, and to do
this the court is authorized
"when the real debt or damages are ascertained (meaning by
verdict or confession) to refer the matter to an auditor, to
ascertain the sum for which judgment shall be given."
In case the judgment shall be for a sum inferior to the real
debt, it shall go on and say "that the plaintiff is entitled to
such further sum as the court shall hereafter assess on discovery
of further assets in the hands of the defendant."
These statutes being in force -- and the 69th of the Equity
Rules set forth by this Court for the governance of courts below in
equity causes, prescribing that
"Three months and no more, shall be allowed for the taking of
testimony after the cause is at issue, unless the court or a judge
thereof shall, upon special cause shown by either party, enlarge
the
Page 76 U. S. 488
time"
-- Zephaniah Jones, a builder, entered in 1851 into a contract
with Miss Ann R. Dermott for building her a large house in
Washington, she agreeing to pay him $24,000 for his work; parts of
the sum to be paid as the building advanced. The house was so far
built as to be ready for delivery in May, 1852, and it was
delivered to Miss Dermott accordingly; its yearly rental being
subsequently estimated at from $7,000 to $8,000. Before the
completion of things on either side, misunderstandings arose, and
Miss Dermott refusing to pay the balance claimed by Jones, he sued
her to recover it. The suit was earnestly contested; technical
objections being raised wherever they could be set up. Jones
obtained a verdict and judgment, but it was reversed here on
objections of this kind. Being thus sent back, he then obtained a
second verdict and judgment, which was reversed on like grounds.
Settlement of the claim was thus greatly protracted.
In the progress of the contest, Miss Dermott departed this life,
leaving debts; leaving the house which Jones had built and the
ground on which it stood (her chief realty), some (not very
considerable) personalty, and a will of a peculiar kind.
By this will she appointed eight executors, one of them being a
certain John P. Ingle. The executors and their survivors, in the
performance of the "powers, commissions, charges, functions, and
duties" which she gave them along with "the exclusive care,
management, and stewardship of her estate," were to have its entire
management and control during an uncertain time named by her. They
were to rent the real estate, and out of the rents and the personal
estate, not otherwise disposed of, were to pay her funeral
expenses, and her other debts, without regard to limitations of
time, "if found according to
their best judgment really due in
conscience;" to pay several legacies, and to pay also an
annuity, while their duties were executing, though after the
execution accomplished, it was to be a charge on the estate; they
were to pay all such debts of her brother, contracted by him in a
place and within a time named, as they should,
Page 76 U. S. 489
"according to the best of their
judgments and discretions,
deem due in conscience, and no other debts or pretended debts
of his contracting."
They were authorized to sell certain lots in an old cemetery,
and to buy others in a new one, and to build there a vault to
receive her remains. The power was given to mortgage her real
estate, if found necessary to pay debts. After the debts and
legacies were all satisfied, the entire estate was to be delivered
over to twenty trustees, named in the will, one Stringfellow being
the first named, to whom and their heirs it was devised for a
charity described -- a charity, however, which now was confessedly
void, and which could not be enforced as against her heirs.
All the persons named as executors declined to act except one of
them, John P. Ingle, already named. He, however, after taking
letters and defending against Jones's suit, but not wholly settling
the estate, died during the progress of the controversy; thus
leaving no executor to the will. Miss Dermott had provided in that
instrument that if the surviving executor should die while the
trusts were yet executory, the execution of her will &c.,
"shall
not devolve upon the executor of such deceased
executor, but upon such person or persons as the vestries of St.
John and Trinity Churches [
Footnote
2] may elect to go on and complete this will insofar as the
execution thereof is committed to my said executors, and that
proper letters of administration with the will might be granted by
the court or authority competent for the purpose, to the person or
persons so elected."
But the vestries of the two churches named by Miss Dermott did
not elect anyone in pursuance of her will to take his place, and
the court in Washington competent for that purpose, acting under a
statute [
Footnote 3] which
authorized the appointment of such an administrator, but was silent
as to the powers which such a representative of the decedent shall
have, appointed one John H. Ingle, administrator
de bonis
non, with the will annexed.
Against this administrator
de bonis non &c., Jones
finally,
Page 76 U. S. 490
in 1865, and after fifteen years' prosecution of his suit,
obtained a judgment. The record entry of it was
"for $20,136, with interest from April 5, 1852, with costs, to
be levied of the goods and chattels which were of the said Ann
Dermott at the time of her death, which have come, or at any time
hereafter shall come, to the hands of the said John H. Ingle, to be
administered, if such goods and chattels be sufficient to discharge
said damages and costs and all other just claims against the same;
and if not sufficient, then said damages and costs to be levied of
said goods and chattels ratably with all other just claims against
the same."
The record proceeded:
"And, because it is unknown to the Court here whether all or
only such ratable part of said damages and costs ought to be so
levied, it is referred to the auditor to inquire thereof, according
to the statute in such case made and provided, and report
accordingly."
The auditor reported that there were no assets in Ingle's hands
which could be applied to payment of the debt. Jones thereupon
filed a bill in equity in the court below -- the bill to the decree
on which the present appeal was taken -- to subject the testator's
real estate to the payment of the judgment. And the complainant
alleging that Ingle, being administrator of the unadministered
personalty only, had no concern with the realty, the court
appointed a receiver, one Wilson, to take charge of it and to
receive the rents.
The bill thus now brought, made
Ingle administrator
&c., and Hoe and several others, heirs-at-law of Miss Dermott,
and Stringfellow with other trustees, parties defendant. The former
denied the justice of the demand and pleaded the statute of
limitations. Hoe and some others filing their answers confessed its
validity, did not plead the statute, and agreed to the sale of the
realty as prayed for. And against Stringfellow and the trustees the
case went by default.
The cause was put at issue on the 6th of March, 1866. The 69th
rule in equity, as already stated, allowed the parties
Page 76 U. S. 491
three months thereafter to take their testimony. The complainant
began the taking of his on the 14th of that month. Between that
time and the 23d, inclusive, he examined nine witnesses, the
complainant's counsel, to whom notice had been given, appearing and
cross-examining those of them whose testimony was the most
important. An adjournment was ordered by the examiner from the 23d
of March until the 2d of June. A deposition relating to a formal
matter was then taken, and the complainant's counsel announcing
that he had closed the examination of witnesses on his part, the
examiner on that day (four days yet remaining of the three months)
sealed up the depositions and transmitted them to the court; no
objection being at this time made by the defendants.
A side issue, made also about this time, must here be referred
to. It has been mentioned that the answers of the heirs-at-law
admitted the justice of Jones's claim, and assented to the granting
of his prayer for satisfaction from the realty. On the 23d of May
they filed a petition setting forth that these answers were
obtained from them by fraud practiced upon them by an emissary of
Jones and asking leave to withdraw those answers and to file
answers
de novo. The particulars of the case were given by
them. Jones answered denying them, but the issue having been one of
fact, there is nothing in it worthy of report further than that the
particular matter was set down for hearing on the 11th of June and
that on the 14th, the court, refusing to allow the withdrawal
prayed for, dismissed the petition asking it.
Returning now to the main case. Six days before this dismissal
-- that is to say, on the 11th of June, and still, therefore,
before the three months for taking testimony had completely expired
-- the court set down the motion for publication of the testimony
on the 8th of June, 1866, and on the same day set down the cause
for hearing at the then term, the petition to take the answers off
the file being still not passed on and pending. On the 10th of
June, the defendants gave notice that they would take testimony on
the 19th of the month, and filed objections against the case's
being
Page 76 U. S. 492
heard at the then term, and showing afterwards as cause that no
sufficient opportunity had been allowed to them to take rebutting
testimony, after the evidence in chief on the part of the
complainant was closed on the 2d of June, and because none was
allowed the defendants, heirs-at-law, to take evidence in support
of the allegations of their petition, filed May 23d, for withdrawal
of their answers. The court below, however, heard the case, and on
the 3d of July, 1866, finding the amount due to the complainant,
and that it was necessary to sell the real estate described in the
bill to pay it, ordered the premises to be sold and the proceeds to
be held subject to the further order of the court. From this decree
it was that Ingle now appealed.
Page 76 U. S. 494
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an appeal in equity from the decree of the Supreme Court
of the District of Columbia. The record is voluminous, and contains
numerous exhibits and much of detail which we have not found it
necessary to consider. The material facts lie within a narrow
compass, and the questions presented for our determination are
neither numerous nor difficult of solution. On the 22d of April,
1851, the testatrix and the appellee entered into a contract for
the erection by the latter of a large building in the City of
Washington. She was to pay for the structure the sum of $24,000 --
$5,000 on the 1st of July, 1851, $5000 on the 1st of October
following, provided certain parts of the building were then ready
for occupation, and the remaining $14,000 on the 1st of January,
1860, with interest, as stipulated. The first installment was duly
paid. Nothing has been paid since. Possession of those parts of the
building to be first completed was delivered in December, 1851, and
of the residue in April,
Page 76 U. S. 495
1852. In May, 1852, Jones sued for the installment due on the
1st of October, 1851, and recovered. The judgment was reversed by
this Court. [
Footnote 4] The
declaration was then amended by withdrawing the special counts and
enlarging the
ad quod damnum to $40,000, and a verdict and
judgment were recovered for $22,149 and interest. This judgment was
also reversed. [
Footnote 5] The
case was again tried, and a verdict and judgment were recovered for
$20,136.23, with interest from the 5th of April, 1852. The auditor
of the court was directed to ascertain the amount of assets in the
hands of Ingle, the administrator, which could be applied in
payment of the debt. He reported that there were no assets
available for that purpose. Jones thereupon filed this bill to
subject the real estate therein described to the payment of his
demand.
It is insisted by the counsel for the appellants that the
judgment is erroneous in form and is, in fact, only interlocutory.
This objection is well taken. According to the statutes of
Maryland, which are in force in the county of Washington, the
judgment, under the circumstances, should have been entered only
for assets as they should thereafter come into the hands of the
administrator. But this fact is immaterial. The case is governed by
the local law. That law makes the proceeding against the
administrator and the heir, when the latter proceeding is
necessary, entirely independent of each other. The duties of the
administrator are confined to the personal estate, and never extend
beyond it. If that be insufficient to discharge the debts, and it
be necessary to resort to the realty of the deceased for that
purpose, a proceeding against the heir must be instituted. In that
event, whatever has been done by the administrator is without
effect, as to the property sought to be charged. A judgment against
the administrator is not evidence against the heir. The demand must
be proved in all respects as if there had been no prior proceeding
to effect its collection,
Page 76 U. S. 496
and the statute of limitations may be pleaded with the same
effect as if there had been no prior recovery against the personal
representative. [
Footnote
6]
We have examined with care the proofs in the record of the
complainant's demand as set forth in the bill, and are satisfied
with the amount found by the decree. It could be productive of no
good to vindicate this view of the subject, by entering into an
analytical examination of the testimony. We are not unmindful of
the length of time through which the complainant has been pursuing
his remedy, nor of the verdicts which have been rendered in the
trials at law. They were the results of vigorously contested
litigation, after the most elaborate preparation of the case. Nor
are we unmindful that the court below, in the case before us, came
substantially to the same conclusion. Our judgment, however, has
been formed upon grounds wholly apart from these considerations. If
the question were
res integra in this case, and now for
the first time to be passed upon, we should have no difficulty in
sustaining the decree. We think the full amount found by the court
is justly due.
Ann R. Dermott, by her will, appointed eight executors, and
clothed them with important powers and duties. They were to have
the entire management and control of the estate during the
uncertain time specified. They were to rent out the real estate.
Out of the rents and the personal estate, not otherwise disposed
of, they were to pay her debts, without regard to limitation of
time; to pay her funeral expenses; several legacies, amounting in
the aggregate to between $3,000 and $4,000; to pay an annuity of
$400, while their duties were executory, after which it was to be a
charge upon the estate; they were to pay, in their discretion,
certain debts of her brother; they were to build a vault to receive
her remains, and they were authorized to sell two cemetery lots.
The power was given to mortgage, if found necessary to pay debts.
After the debts and legacies were all satisfied, the entire estate
was to be delivered over to twenty trustees,
Page 76 U. S. 497
named in the will, to whom and their heirs it was devised, to
enable them to found and support a female orphan asylum. The
beneficiaries were to be such destitute white orphans as the
trustees, or any corporation which might succeed them, should
select. The provision for this charity is admitted on both sides to
be void. The statute of the 43d Elizabeth never was in force in
Maryland. The trust resulted for the benefit of the heirs-at-law.
[
Footnote 7] All the persons
named as executors declined to act, except one of them, John P.
Ingle, who qualified, and took out letters testamentary. He died,
whereupon the defendant, John H. Ingle, was appointed
administrator, with the will annexed. The will provides, that if
the surviving executor should die while the trusts are executory,
their execution should devolve upon such person or persons as the
vestries of St. John and Trinity Churches should elect to go on and
complete their execution, so far as they were committed to the
executors, and she desired that letters of administration, with the
will annexed, or other competent authority, should be granted to
the person or persons so elected. The vestries made no election.
Letters were granted by the judge of probate to John H. Ingle, as
if the will contained no such provision.
The question whether the administrator thus appointed could
exercise any authority as to the real estate is deemed an important
one by the counsel on both sides, and has been fully argued. The
Maryland statutes which bear upon the subject provide for the
appointment of an administrator
de bonis non, with the
will annexed, but are silent as to his powers. By the common law
his duties are confined to the personal estate, unadministered by
his predecessor. Whatever authority he may possess as to the real
estate must be derived from the will. If not found there in express
terms, or by necessary implication, it has no existence. Hence the
test, in all such cases, is the intention of the testator. Many of
the duties enjoined upon the executors were foreign to those which
come within the scope of their ordinary functions.
Page 76 U. S. 498
Such a power never passes by devolution to an administrator,
unless it be clear that it was the intention of the testator that
he should become the donee of the power, in place of the executor
appointed by the will. If no provision be made by the will for such
substitution, the power does not become extinguished, but the case
falls within the category of those where a court of equity will not
permit a trust to fail for the want of a trustee, but will appoint
one, and clothe him with authority adequate to the duties to be
discharged. [
Footnote 8] In the
case under consideration, it is clear the testatrix did not intend
that anyone not clothed with the sanctions she prescribed should be
entrusted with any duty touching her estate. The administrator
occupies the same relation to the realty as if he were
administrator
de bonis non without the will annexed, and
the testatrix had died intestate. This disposes of the questions
raised as to the statute of limitations. The administrator alone
has interposed that defense. It cannot avail those who represent
the real estate, and who are the only parties in interest in this
proceeding.
It was proper for the court to appoint a receiver. Until this
was done there was no one authorized to take charge of the property
and receive the rents.
Upon looking carefully into the record we find no foundation for
the imputation that the answers of the heirs-at-law were obtained
by fraud or contrivance. It was within the discretion of the court
to allow them to be taken off the files and the parties to answer
de novo, or to overrule the application made for that
purpose. We think this discretion was not abused.
It was strenuously insisted that the court erred in refusing
further time to the defendants to take testimony. The earnestness
with which the point was pressed has induced us to examine it with
more care than we should otherwise have deemed necessary. The cause
was put at issue on the 6th of March, 1866. The 69th rule in equity
allowed the parties
Page 76 U. S. 499
three months thereafter to take their testimony. The complainant
commenced taking his on the 14th of that month. Between that time
and the 23d, inclusive, he examined nine witnesses. Notice was
given to the defendant's counsel. He appeared and cross-examined
the witnesses so far as he chose to do so. An adjournment was
ordered by the examiner, from the 23d of March until the 2d of
June. A single deposition relating to a formal matter was then
taken. The examiner thereupon closed the testimony and returned it
to the court. It does not appear that the defendants made any
objection to the adjournment, or manifested any desire to take
testimony during the period of more than two months between the
time of the adjournment and the time to which it extended. The
application for further time was heard and overruled by the court
on the 8th of June. The rule referred to provides that
"three months, and no more, shall be allowed for the taking of
testimony after the cause is at issue, unless the court or a judge
thereof shall, upon special cause shown by either party, enlarge
the time."
The three months are allowed for the taking of testimony by both
parties. The limitation applies as much to defendants as to
complainants. It is for the court or judge to decide whether
further time shall be given or refused, and ordinarily the
determination of the question would not be deemed a fit subject for
review by this tribunal. Cases may, however, occur of so flagrant a
character that it would be our duty to correct the error. In the
case before us the complainant's testimony was substantially closed
on the 23d of March. The defendants had from that time until the
6th of June to take testimony on their part in the regular way. No
reason is given why they neglected to do so. Indeed they were bound
to proceed as soon as the cause was at issue. They had no right to
wait until the complainant was through. They knew from the previous
trials at law what his testimony would be. If there was any
surprise, and an extension of time was necessary, doubtless it
would have been given. The complainant was pursuing the residue of
his compensation for the house he had built. He had delivered
Page 76 U. S. 500
possession years before. The house was large and valuable. The
proof is that it rented for from seven to eight thousand dollars
per year. His expenditures had been large. He had received less
than a quarter of the contract price, and nothing for his extra
work. He had recovered two verdicts for the amount claimed. He had
been engaged for more than fourteen years in a bitter and expensive
litigation, in which every possible impediment had been thrown in
his way. In the light of these facts we are not prepared to say
that the court below erred in the ruling complained of.
There is no error apparent on the face of the decree. It finds
the amount due to the complainant, and that it was necessary to
sell the real estate described in the bill to pay it. It orders the
premises to be sold in the manner prescribed, and the proceeds to
be held subject to the further order of the court. The auditor had
found and reported the deficiency of assets requisite to give the
court jurisdiction and to entitle the complainant to the relief
sought by his bill. The necessity of making the sale, if the
complainant's demand was to be paid, was clear upon the proofs, and
was not denied by the answers. The amount of the liabilities to be
paid out of the proceeds might have been ascertained before the
decree of sale was made, but that was not indispensable. It may as
well be done when the sale is confirmed. The rights of all parties
in respect to the fund can then be ascertained, and payment and
distribution be ordered accordingly. It is not alleged that the
premises were susceptible of division, or if they were, that it was
not necessary to sell the whole. No such issue is made in the
pleadings, and no such proof is found in the testimony.
It is now nearly eighteen years since the complainant commenced
a suit to recover what has been adjudged to him in this case. The
conflict has been flagrant ever since. The demand seems to us to be
simple and just. We find no error in the record, and the decree of
the court below is
Affirmed.
[
Footnote 1]
Act of 1786, chapter 80, ? i; act of 1798, chapter 101,
subchapters 7, 8, ?? vii, viii, ix.
[
Footnote 2]
Two Episcopal churches in Washington.
[
Footnote 3]
Act of Maryland, 1798, chapter 101, subchapter 5, ? 6
&c.
[
Footnote 4]
64 U. S. 23 How.
220.
[
Footnote 5]
69 U. S. 2 Wall.
1.
[
Footnote 6]
Statutes of Maryland of 1786 and 1798;
Collinson v.
Owens, 6 Gill & Johnson 4;
33 U. S. 8 Pet.
528.
[
Footnote 7]
Dashiell v. Attorney General, 5 Harris & Johnson
400;
Same v. Same, 6
id. 9;
Wildeman v. Mayor
of Baltimore, 8 Md. 554.
[
Footnote 8]
Egerton, Administrator v. Conklin, 25 Wendell 233;
De Peyster v. Clendining, 8 Paige 296;
Dominick v.
Michael, 4 Sandford 402;
Cole v. Wade, 16 Vesey 42; 1
Chance on Powers 658, 681.
