#### Ruggles and Hooker *against*Sherman, *administrator of*Howard.

NEW-YORK,

October, 1817.

Where thereare creditors in equal degree of testator or m-testate, the one who commences adm^suator” riu^o^satisfac^ deremtantcbcanvohmtary pay-”edit-T.a“other creditors6 com-the666executor administrator may give a pre ference to one, judgmentsi“5to may’pi”adCinbar tbe^ther1'0" °f take ^vantage mentuii‘n 5“any pleading it. 0rafimin^istrator ment, or siiirers fauii, he is es-topped from deDying assets, to the extent of that judgment, therein plaintiff toppei'k^ac piainti}¿anoíher aA'ctímagáinst tor- thenB.comtion, and the »<» judgment at the suit of be pleads outstanding debts a higher degree,. debt himself of equal degree, but does not plead the judgment recovered by B.; held, that the defendant not having pleaded B’s judgment, cannot avail himseK oi it as a defence, but that it is not an admission of assets, so as to entitle *A*to judgment on the plea *oi piene administravil,*and that the defendant might, notwithstanding, take advantage in his defence of the debts which he had pleaded. Such judgment, although not an estoppel in the suit by A. is, it seems, evidence of assets to be left to the jury. Tt -eems that the neglect of the executor or administrator, to file an inventory, is also a circumstance of some ”'*rht to charge him with assets £ outstanding debt due the testator or intestate, is not assets in the hands of his executor or administrator, w‘iervthere has not been gross negligence, or collusive, fraudulent, and unreasonable delay in collecting it.

THIS was aii action of *assumpsit.*The cause was originally « *o j*commenced in the court of common pleas of *Dutchess*county, 1 *J*7 an¿ the bill of exceptions taken at the trial in the court below, was removed into this court by writ of error. A *venire facias de novo*being awarded out of this court, the cause was tried before Mr. J. *Yates,*at the *Dutchess*circuit, in *September,*1816.

The plaintiffs declared for services rendered to the defendant’s intestate, as his attorneys. The defendant pleaded several debts of the intestate, by specialty, due the defendant and others, amounting to about 900 dollars, and a debt, by simple contract, *a*. i • • diieto the defendant, or 100 dollars, and that he had iully adminis*7*v e tered, except goods and chatties of small value; to wit, of the value of one dollar. &c. The plaintiffs replied, that the defendant had goods and chattels beyond the assets confessed, and more than sufficient to satisfy the debts mentioned in the plea, wherewith he could have satisfied the plaintiffs, and tendered an issue to the country.

At the trial, evidence was given on the part of the plaintiffs, *to*show the sufficiency *of*the assets, which was opposed by testim0ny on the part of the defendant. *James Grant,*a witness for *J 1** the defendant, testified, that he was executor of *Richard Howard* 71*7 sen the father of the defendant’s intestate, and that the defendant, as administrator, had often applied to him for the payment °f an obligation of about 2000 dollars, from the defendant to *R. Howard,*sen. which the witness had always refused, and that the defendent commenced a suit thereon, against the witness, which was pending. The witness, on being cross-examined, testified, that his ground for resisting it was, that *R. Howard*was a very old man, and sometime before his death was not competent to do business, and also that the witness had a set-off: but *451being informed of the date of the obligation, the witness admit-led that his testator might, at that time, have been competent to give it. The witness had on hand as executor 1,200 dollars. It appeared that the defendant was not entitled to charge more than the sun of 719 dollars 65 cents, to the estate, for money, expended by him, and that he had received the sum of 1179 dollars 12 cents; this, with the addition of the assets in the hands of *Grant,*his father’s executor, would amount to above 2300 dollars. The demand of the plaintiffs, was 106 dollars and 81 cents. It was proved on the part of the plaintiffs, that the defendant had never filed an inventory, and they gave in evidence a judgment in the court of common pleas of *Dutchess*county, against the defendant, as administrator, in favour of one *Stevens,*on a simple contract debt due from the intestate. The *capias*in that suit was issued a few days after the present action was commenced, and the defendant gave a *cognovit*therein, by which he confessed damages to the amount of 110 dollars, for which sum, with costs, judgment was entered against him, in *July A*815.

A verdict was taken for the plaintiffs, subject to the opinion of the court, on a case containing the above facts.

*P. Ruggles,*for the plaintiffs.

If a person administers without making any inventory of the intestate’s effects, the law supposes him to have assets for the payment of all the debts and legacies, unless he repels that presumption.* So, if in his inventory the administrator does not distinguish between *sperate*and *desperate debts,*he will be charged with the whole as *assets,*and be put to the proof, if any of them were desperate.† And all *sperate*debts are assets, unless he prove a demand and refusal.‡ And this court, in *Platt*v. *Robin*and another, administrators of Smith,§ held, that on the plea of *pi ene admmistravit,*the *onus probandi*lies on the defendant. Again, payment of *interest on a*legacy. by an executor, has been held to be sufficient proof of assets.ǁ It is laid down by Swinbum,** and admitted to be law,†† that if an executor enters on the goods of the testator and makes no inventory, he will be liable for all the legacies. So *Shepherd**‡‡***says, until an inventory is made, it is presumed that the executor has assets to pay all men, and he cannot deduct his own debt first, and bar other men by plea.

*452Again, after confessing the judgment in favour of *Stevens,*the defendant should have pleaded it, and 'no assets *ultra. By*not doing so, he admits assets, and is estopped.* So, if an execut°r pays *legacies*before *debts,*it is a *devastavit.**†*

*J. Tallmadge,*contra.

The question is, whether the defendant *asse¡s^*at the time of plea pleaded, or not. Under a plea of *plene administravii,*the defendant may give in evidence all previous payments. If the plaintiff elects to take issue on the plea of assets, he can only take judgment for assets in *futuro,*after debts of a higher grade pleaded, are paid.

The neglect to file an inventory merely affords a presumption of assets, which may be repelled by proof. It is only *prima facie*evidence against the administrator.

The case of *Rock*v. *Layton,*as reported by Lord *Raymond,**‡***explains the meaning of the fourth position in the report of the same case in *Salkeld,*and the case is commented on by *Buller, J.*who gives a report of it from a MS. of Lord *Holt,*in *Erving*v. Peters.§ The report in *Salkeld,*is no authority for that case, when we have the report of Lord *Holt*himself. The principle is, that if the administrator suffers judgment to go, by default, against him, he admits assets, to the amount of that judgment, as between him and the plaintiff. To that extent he is es-topped, and no further; it is no estoppel in other suits brought by other persons.

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*Taller's L> of Ex. 250. 251. 4. Burn's Ecel.*L. 265. 266. Swinb. p. 6 s 6.

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Van Ness, J.,

delivered the opinion o"f the court. The principal question in this cause is, whether the confession of the judgment to *Stevens,*concludes the defendant, on the question of assets ? This suit was commenced before that of *Stevens ;*0 and if there were no other debts against the estate; of the intestate, than those of the plaintiff and *Stevens,*there is no doubt but that the plaintiffs would be entitled to satisfaction of their demand. By commencing this suit before *Stevens,*the plaintiffs acquired a right to priority of satisfaction over him, the debts being of the same degree; for although an executor has a right to prefer one creditor to another of the same degree, yet this right is restrained and controlled by the commencement of an action against him; and he is not, in that case, warranted -,n making a voluntary payment of such other debt, to defeat *453the party of his remedy. When two creditors, in equal degree, "both commence actions, he who recovers judgment first, is to be satisfied first; and even in the last mentioned case, the right to give a preference still exists, for the executor may confess a judgment to the one. and plead such judgment in bar to the action of the other; but he is bound to plead it, and if he omits to do so, he cannot lake advantage of it in any other way. In this case, then, if there were no other debts, the plaintiff would not be devested of his prior right to satisfaction, for the defendant has omitted to plead the judgment confessed to Stevens, and that he had no assets *ultra.*This doctrine will be found in the case of *Rock*v. Leighton, (1 *Salk.*310. S. C. 1 Lord *Raym*58.) Probably the best report of this case is by Lord *Holt*himself, which will be found in *Erving*v. *Peters,*(3 *Term Rep.*689.,) in the opinion of Mr. Justice *Buller,*who read a note of it from Lord *Holt's*manuscript. That case, and the case of *Platt*v. *The Administrators of Smith,*in this court, (1 *Johns. Cas.*276.,) as well as others, also show, what is very well settled and known, that if a judgment is recovered against an executor, by default, on confession, such judgment is an admission of *assets*to the amount of the sum recovered; and that in a suit upon it, suggesting a *devastavit,*the production of the record of such judgment would be conclusive of that fact.

But, in this case, it is attempted to push this principle much farther; it is said that, notwithstanding the defendant has pleaded *plene administravit,*yet, that the confession of the judgment to *Stevens,*is an estoppel, not only as between the defendant and *Stevens,*but, also, as between the parties to this suit. This is a doctrine not to be found in any of the cases that have been cited; and, as I apprehend, is not well founded. The defendant here has pleaded outstanding specialties, and a debt due to himself, sufficient to exhaust all the assets that have ever come to his hands. The replication puts the latter fact only in issue, thereby admitting the debt as pleaded ; and upon this issue, the parties proceed to trial. The defendant, upon the trial, (as may be assumed for the purpose of discussing this point,) proved that he had no assets beyond the debts specified in his plea; now it seems to me the necessary consequence would be, that the defendant is entitled to judgment. The confession of the judgment by the defendant to *Stevens,*is conclusive as between *454them, that the assets were sufficient to discharge it; but these plaintiffs were neither parties nor privies to that judgment, and it does not, therefore, estop the defendant from showing the truth of the fact in this suit. On the question put in issue by the pleadings, it may well be, that the confession of the judgment to *Stevens,*might properly have been submitted to the jury, as a strong, though not a conclusive, circumstance, to show that the defendant had assets, over and above the debt specified in his plea, sufficient to satisfy the demand due to the plaintiffs. *Valeat quantum valere potest.*

It appears to me, that the case of *Rock*v. Leighton, so much relied upon in behalf of the plaintiffs, has been altogether misapprehended. There, two suits had been brought against the administratrix, one by her brother, *Pyke,*and the other by *Pugh.*In the first, *Pyke*recovered judgment against her, by *nil*dicit, and in the other she let judgment go by *default;*and a material fact stated is, that the whole amount of assets was 279/. not sufficient to pay the first judgment. Upo'n this state of facts, the court decided, that by *letting judgment go by default*in the one case, when she might have pleaded the judgment in the other, with *riens inter mains ultra*to satisfy it, which would have been a good bar, she tacitly admitted, that she had assets *ultra,*and was, therefore, concluded by such her admission. And Lord *Holt*(I quote from *Buller’s*opinion in *Erving*v. Peters) says, “ So the plaintiff (the administratrix) might have pleaded the judgment at her brother’s suit; that would have defended the *assets*that she had, against the action brought by *Pugh;*but she, having admitted the assets she had to be liable to the action by *Pugh, by letting judgment go by nihil dicit,*is in the same condition as if there had been no judgment against her at her brother’s suit.” The decision in that case is simply this, that as there were assets proved to the amount of 279/. and but two debts against the estate, for which two suits were pending at the same time, and in which both the plaintiffs obtained judgment; that the administratrix was liable to pay both, on the ground of her omitting to plead the judgment first obtained by *nil dicit,*and *suffering a judgment to go against her by default*in the last, which was an admission of assets, by estoppel, sufficient to satisfy both. The administratrix was held to be liable, not because she had suffered judgment by *455*nil dicit,*in the suit against her in favour of *Pyke,*but because she had not pleaded that judgment in bar, and thus made out a complete *plene administravit;*and because in the suit in favour of *Pugh,*the judgment by default was an estoppel, and concluded her from showing the truth of the fact; namely, that the judgment in favour of *Pyke*was sufficient to exhaust the whole of the assets. This case then proves, that the administratrix might have pleaded *plene administravit,*and that her suffering judgment by *nil dicit,*at the suit of *Pyke,*formed no part of the ground upon which the decision was founded; but, on the contrary, that she was in the same condition, as if there had been no such judgment against her.

Let us now see how these principles affect this case. Here was a judgment in favour of Stevens, which the defendant might have pleaded, if he pleased, and was bound to plead it, had it been necessary to show that he had fully administered. Instead of suffering judgment to go by default, (as in the case of *Rock*v. Leighton,) which would have concluded him, the defendant pleads a special plea of *plene administravit,*upon which the plaintiffs took issue, and, on the trial, the defendant proved, that, independently of the judgment in favour of *Stevens,*there were other debts, (that is to say, the debts specified in his plea,) entitled to priority of satisfaction, exceeding the whole amount of the assets. The plaintiff says he has no right to show this, because he is estopped by confessing judgment to Stevens. This is incorrect, because it has already been shown, by the case relied upon by the plaintiffs, that that judgment is no estoppel as to any other persons, than the parties to it; and because the same case proves, that if the amount of the judgment in favour of *Stevens*had been sufficient to exhaust the assets in the hands of the defendant, so far is it from being conclusive against him, he might have pleaded it in bar to this very action. It would be most unjust, then, that because an executor has confessed a judgment in one case, by which he has made himself liable to pay a debt out of his own estate, that he should, thnefore. be precluded from showing that, independently of the judgment so confessed, he has faithfully applied all the effects which came to his hands to the discharge of other debts due. from his testator. 1 think, therefore, that, upon this ground, the plaintiffs have no right to recover.

*456The other points that have been made by the plaintiff are of minor importance, and equally untenable.

If the demands in favour of the intestate against *Grant,*the executor of *Richard Howard,*the elder, are to be considered assets in the hands of the defendant, he has failed to make out his defence; that this debt has ever been received, is not pretended, and there is no reason to believe that it might have been collected by barely demanding it, or that there has been wilful or gross negligence, or carelesness, on the part of the defendant, by which the collection of it has been collusively, fraudulently, or unreasonably delayed. I perceive no ground, therefore, on which to decide that these demands are to be considered as assets in the hands of the defendant. *Grant’s*testimony discloses the actual state of them; there is no good reason for imputing negligence to the executor, in not having done more than he has done to enforce, the payment of them. Whether they are at all recoverable, cannot now be certainly determined. If these demands are laid out of the case, then the defendant has abundantly established his plea, after making all deductions contended for by the plaintiffs, and giving them the benefit of all the unfavourable inferences to be made against the defendant, from his neglect to file an inventory, upon which, however, much greater stress has been laid in this particular case, than the facts and circumstances will warrant. We are of opinion, accordingly, that the defendant is entitled to judgment.

Judgment for the defendant.