Spicer v. Giselman and others. Dec. Term, 1846. 'such ancestor or devisor; and any writ which could be brought IN BANK. and sustained against such ancestor or devisor, were he alive, 'may be brought and sustained against such heirs and devisees, after the executor or administrator of the ancestor or devisor 'shall have made final settlement with the Court, until the assets so received by such heirs or devisees shall be exhausted." The first and all important rule to be regarded in construing a statute, is to have respect to its spirit rather than its letter. Manifestly the framers of this section did not contemplate a violation of the plain rules of natural justice. They did not design to give to creditors the right to subject an heir, in any case, to an amount beyond the value of the assets which that heir had received. The intent must be borne in mind in giving a construction to their language; and if, literally taken that intent will be defeated, the words of the section must be departed from. We have before seen that a joint liability can not arise from a separate receipt of property, and that a joint action cannot be permitted when there is no joint liability, without subjecting the solvent to the payment of the debts of the improvident, and that this cannot be consistently with justice. The very right of the whole matter would be, to subject each heir to the payment of the ancestor's debts to the amount of the assets that may have come to his hands. This was all that the statute meant. This could be done by a separate suit against each, and therefore separate suits are the only suits provided for where there has been no joint reception of the assets. The demurrer was, therefore, well taken to the first and second counts of the declaration; and had it been limited to those counts, there would have been no error in sustaining it. The third count is the usual common count for money had and received, &c. To this count the demurrer was not well taken, It furnished no defence. Assuming to answer the whole declaration, and being insufficient as to a part, it should have been overruled. The Court of Common Pleas in not overruling it erred, and for that error their judgment must be reversed, IN BANK. Dec. Term, 1846. Spicer v. Giselman and others. HITCHCOCK, J., dissenting. Although I concur in the reversal of the judgment of the Court of Common Pleas, yet I am constrained to dissent from the opinion of a majority of the Court, so far as that opinion is applicable to the two first counts of the plaintiff's declaration. These counts are based upon two promissory notes executed by the ancestor of the defendants to the plaintiff, which notes are specifically set forth. It is further stated, that the defendants are heirs; that, as such, assets to an amount greater than the sum due on said notes, have come to their hands; that the notes were not presented to the administrators; that the accounts of the administrators had been fully settled with the court, and the balance remaining in their hands, after the payment of claims presented against the estate, have been distributed to the defendants, as heirs, whereby they became liable, &c. Whether these two counts are sufficient, depends upon the proper construction of the 43d section of the act of March 12, 1831, defining the duties of executors and administrators; (Ch. Stat. 1784.) This section is as follows: "Nothing in the preceding section contained, shall impair the personal liability of 'heirs or devisees for the payment of any claim against the es⚫tate of their ancestor or devisor; but such heirs and devisees 'shall remain liable, to the full extent of the assets by them received from the estate of the ancestor or devisor, for the 'payment of all claims against the estate of such ancestor or devisor; and any suit which could be brought or sustained ' against such ancestor or devisor, were he alive, may be brought and sustained against such heirs and devisees, after the execu'tors or administrators of the ancestor or devisor shall have 'made final settlement with the court, until the assets so re'ceived by such heirs or devisees, shall be exhausted: Provided ' always, that such heirs or devisees may make any plea or defence to such suit, which their ancestor or devisor could 'make, were he alive and such suit instituted against him." The object of this section of the law is apparent, and requires no comment. The case now under consideration is prosecuted Spicer v. Giselman and others. Dec. Term 1846. pursuant to it, and it is admitted, that the averments of the IN BANK. declaration are sufficient. The only objection made is, that the suit is a joint suit against all the heirs, whereas, as is insisted, it should have been a separate suit against one of the heirs, or, rather, separate suits against each one of the heirs. A majority of the Court adopt this mode of reasoning, and hold such to be the meaning of the statute. If such be the proper construction, I must confess that I do not well comprehend the force of language. Any suit which would be brought and 'sustained against such ancestor or devisor, were he alive, may 'be brought against such heirs and devisees." Not against one of the heirs separately, but against "such heirs and devisees" collectively. Such is the language, and, to my mind, such is the evident intent and meaning of the statute. But it is objected to this construction, that, after the recovery of judgment, a creditor might enforce the collection of his whole claim, by execution against one of the heirs. If this be an objection, it is equally valid as against the policy of separate suits. In such case, the whole claim might be collected in one suit and from one of the heirs. But in either case, there can be no doubt that all would be liable to contribution. It is objected, that in order to a joint liability in contracts, there must be a joint undertaking, and that there is not, in the case before the Court, any such joint undertaking. I do not controvert the principle advanced, but cannot perceive its applicability to this case. These defendants are not sued in their own right, on account of any undertaking or promise of their own, but they are sued in a representative capacity, as heirs. This liability does not depend upon their own personal obligation, but upon the fact, whether they have received any thing by descent from their ancestor, who, during his lifetime, was under a personal obligation to satisfy this demand. Executors or administrators represent the estate of their testator or intestate, and if there is more than one, all must be sued. Under the law of 1831, after the executor or administrator shall have settled up with the court, he ceases to represent the estate, and Dec. Term, 1846. Spicer v. Giselman and others. IN BANK. the heirs become the representative, as much so as was the executor or administrator before the settlement. And as it is necessary, where there are more than one executor or administrator, that all should be sued, so it is necessary, where there are more than one heir, that all should be sued. But neither executor, administrator nor heir can be made liable beyond the amount of assets descended. Whether a similar principle prevails in any of our sister States, I do not know, but in England, a man may, by his bond, bind his heirs as well as himself; that is, if, upon the face of the bond, the heir is bound, he will be held, after the death of his ancestor, to the extent that lands shall have descended to him. This is a well known principle of the common law. But it was found that debtors, with a view to defeat their creditors, adopted the practice of devising their lands. This practice induced the passage of the statute of 3 & 4. W. & M., by which it is enacted, that, as to specialty creditors, such devises shall be deemed and held to be void; 3 Bacon's Ab. 461. The statute further provides, that such creditors may have an action against the heir and heirs and devisees jointly. ( So far as I can learn, it was never doubted that the heirs of an obligor might be sued jointly, before the passage of the act of 3 & 4 W. & M., nor has it been doubted since the enactment of that law, that heirs and devisees could be sued jointly. That I am not mistaken in this opinion is, to my mind, manifest from the English precedents.2 Ch. Pl. 161; Clift. Ent. 243; Ibid. 19; Lill. Ent. 145, 529, 53; 2 Rich. C. P. 241; 5 Wentr. 374. I can see no good reason why this practice, adopted in the English courts, should not be pursued in this State, under a statute which is, in a great degree, analagous to the law binding upon those courts. It was the practice adopted by the pleader in the case now under consideration, and, as it seems to me, is consistent with principle and precedents. I hold, that the Court of Common Pleas erred in sustaining the demurrer to the two first counts in the declaration, and, that, for that reason, the judgment should be reversed. Morningstar and others v. Selby and others. MICHAEL MORNINGSTAR and others vs. LEONARD SELBY and others. A Court of Chancery cannot entertain jurisdiction to set up and establish a lost or destroyed last will and testament. The jurisdiction is with the Courts of Common Pleas, or Probate Courts. THIS is a case in CHANCERY, reserved in the County of WARREN. The object of the bill, in this case, was to establish a spoliated will, alledged to have been made by John George Morningstar, deceased, who departed this life April 23, 1844. The case is very voluminous, much testimony having been taken as to whether the deceased, in fact, made a will; if so, what were its provisions, and whether it was revoked, lost or destroyed; but as the Court, in deciding the case, only passed upon the question of jurisdiction, it is not deemed necessary to furnish an abstract. For the same reason, only so much of the arguments of counsel as relates to that question, are inserted. T. Ewing, for Complainants. I confine myself, in this case, to the question of jurisdiction, and contend First: That a will, lost or destroyed, may be set up by the Court of Common Pleas on bill in chancery. 1. It may be set up. It is not known to our system of jurisprudence, that a wrongdoer, by the spoliation of a paper, may destroy the title of another and vest his estate in himself. Our courts will not suffer a man to acquire property in the purse which he has got by robbery, or the horse which he has stolen; much less could it be suffered, that, by destroying the more legal evidence of title belonging to another, he should IN BANK. Dec. Term, 1846. |