Colson v. Brainard

The • Surrogate. — I have not examined the objections made to the regularity of claimant’s proceedings in procuring the appointment of Barnes as a referee, and the entering of his judgment without an order confirming the report, for the reason that the conclusions I have come to, upon the last objection made to the judgment, render it unnecessary.

At common law, neither the admissions of an executor or administrator, nor a judgment against him, could in any way bind the heir or devisee, or affect the real estate derived from his testator or intestate. (Osgood v. Manhattan Co., 3 Cow., 612; Spraker v. Davis, 8 Id., 132; Baker v. Kingsland, 10 Paige, 366, 368; Mooers v. White, 6 Johns. Ch., 360, 373; 1 Cow. & Hill’s Notes; 403, ed. of 1850; 2 Id., 7, note 10.) This being the rule at common law, let us see how it has been modified, if at all, by statute.

It is provided (3 Rev. Slat., 5 ed., 747, § 12), “That the real estate which belonged to any deceased person shall not be bound, or in any way affected by a judgment against his executor or administrator, nor shall it be liable to be sold by virtue of any execution issued upon any such judgment.”

By this provision, the real estate of a deceased person is placed beyond the reach of a judgment against his executors or administrators, and is not to be bound or in any way affected thereby.

As to the effect of such a judgment, when an application is made to sell the real estate of a deceased person to pay his debts, the statute provides, “ That when a judgment has been recovered, or a decree obtained against an executor or administrator for any debt due from the deceased, and there are not sufficient assets in the hands of the executor or administrator to satisfy the same, the debt for which the judgment or decree was obtained shall, notwithstanding the form of such judgment or decree, remain a debt against the estate of the deceased to the same extent as before, and to be established in the same manner as if no such judgment or decree had been obtained, provided that when such judgment or decree has been obtained upon a trial or hearing upon the merits, the same shall prima facie evidence of such debt before the surrogate.” (3 Rev. Stat., 5 ed., 196, latter part of § 59 ; Laws of 1837, ch. 460, § 72, as amended by Laws of 1843, ch'. 172, and Laws of 1847, ch. 298.)

The judgment in this ease was obtained after a hearing upon the merits, and this provision makes it piyi/rhafacie evidence of the debt upon this application. It divests it of the character and force of a judgment, and makes it in the first instance evidence of the extent of the claim; but like all prima-facie evidence, liable to be controverted, impeached, reduced, or entirely disproved by any competent evidence.

No other construction would give any force to this provision. If, upon a hearing, the claim cannot be controverted like any other claim, then the j udgment is conclusive, instead of primafaeie evidence of the debt. The judgment does not even change the character of the debt, or prevent the Statute of Limitations from running against it. It is not evidence of the costs of the suit; and they cannot be included in the debt and charged upon the real estate. (Ferguson v. Broome, 1 Bradf., 10; Skidmore v. Romaine, 2 Id., 122; Sandford v. Granger, 12 Barb., 392; Dayton’s Surrogate, 2 ed., 559, 560.)

If the judgment does not change the character of this claim, and it remains a simple debt against the estate of the deceased, then the persons representing the interest of Mr. Brainard in the real estate of deceased, should be allowed to litigate the validity and extent of the claim, and set up against it the matters stated in their third point. For it is further provided that “ on such hearing it shall be competent to any heir or devisee of the real estate in question, and to any person claiming under them, to show that the whole of the personal estate of the deceased has not been duly applied by the executors or administrators to the payment of his debts, to contest the validity and legality of any debts, demands, or claims which may be represented as existing against the testator or intestate, and to set up the Statute of Limitations in bar to such claims; and the admissions any such claims so barred, by any executor or administrator, shall not be deemed to revive the same, so as in any way to affect the real estate of the deceased.” (2 Rev. Stat., 5 ed., 188, §13.)

_ This provision' secures to the heirs or devisees, or any person claiming under them, the right, upon the hearing, to litigate or contest the legality or validity of any claim, and 'set up the Statute of Limitations. And the concluding portion of the section evinces the determination of the Legislature to carry out the doctrine of the common law, and protect the real estate from being bound or affected by the acts or admissions of the executor or administrator.

The heirs or devisees of Hr. Brainard are, therefore, entitled to be let in to litigate or contest this claim, and I cannot refrain from saying, that it is a principle of justice, in harmony with all law, that every person whose property is liable to be taken for the payment of a claim of this nature, should have an opportunity to be heard when the amount of that claim is fixed or liquidated.

It is also provided that “ If, upon such hearing, any question of fact shall arise, which, in the opinion of the surrogate, cannot be satisfactorily determined without a trial by jury, he shall have authority to award a feigned issue, to be made up in such form as to present the question in dispute, and to order the same to be tried at the next Circuit Court to be held in such county.” (3 Rev. Stat., 5 ed., 189, § 14.)

By section 72 of the Code, feigned issues are abolished, and an order for a trial is substituted, which shall state the question of fact to be tried, and which shall be the only authority necessary for a trial. As the counsel for the claimant has requested that if a rehearing of this claim is ordered, it be sent to the circuit for trial, I am quite willing to assent to this request, trusting that this desire on the part of the claimant’s counsel, coupled with the amount of the claim, and the principles involved in it, will be regarded by the justice who shall hold the circuit, as a sufficient reason for sending there for trial a case that in most instances would be sent to a referee for decision.

The parties interested may draw; up such an order as will present, plainly and distinctly, the questions to be litigated in this case.