Ridgely’s Notebook II, 426
High Court of Errors and Appeals of Delaware.
June, 1819.
Writ of error directed to the Justices of the Supreme Court for Kent County.
This was an action brought against Benjamin Blackiston, administrator with the will annexed of Jesse Ford, on a guardian bond. On December 11, 1795, William Numbers was appointed guardian of Morgan Crockett, the plaintiff here and in the Supreme Court, and he, Numbers, made the bond, upon which this suit was brought, and gave Jesse Ford and Mark Lewis, sureties. They likewise executed the bond. The action was commenced in the Supreme Court to March Term, 1816. The declaration was in the usual form. Oyer was prayed and granted. The defendant
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pleaded nil debit with leave etc. and, by consent plene administravit, debts of superior dignity; replications, and issues.
One of the replications was special, to the following effect:
1. That there came to the hands of the said William Numbers, guardian, rents from May 10, 1795 to [___] day of [___][1] 1805, of the yearly value of £20, and that by a guardian account passed by Numbers July 24, 1804, he accounted for rents and profits, for eight years only, viz from 1795 to 1803, and that all reasonable charges and allowances being made to Numbers, the guardian, there is shown to be a balance due to Morgan Crockett of £67.13.7, and that the rents and profits of the land of said M. Crockett which subsequently came to the hands of said guardian remain to be accounted for, that Numbers, the guardian, never paid to Crockett the rents and profits which came to his hands as guardian, as aforesaid, nor any part thereof, nor anything on account of said rents and profits more than is charged in said guardian account. And the balance of £67.13.7 appearing on said guardian account with interest, and the farther sum of £40, for said rents and profits which came to the hands of said William Numbers as guardian as aforesaid, and are not accounted for in said account with interest became and still remain and are due and owing to said Morgan Crockett, and in arrears and unpaid.
2. There came to the hands of said William Numbers, as guardian of said M. C., £95.7.11¾ being said M. Crockett’s share of 2/3 of the clear residue of the personal estate of his father, Jonathan Crockett as shown by an administration account on the estate of the said Jonathan Crockett passed by said William Numbers March 1, 1804, said clear residue bearing interest from May 11, 1796, and said William Numbers has never paid said sum or any part thereof, or the interest thereof to the said M. C., and said £95.7.11¾ with interest remain due and owing to said Morgan Crockett.
At the trial at March Term, 1817, the jury found a verdict for the plaintiff below for the sum in the declaration, and assessed the damages of the plaintiff by occasion of the breach of the condition of the obligation aforesaid first assigned in the special replication to the sum of $195.04. And further they assessed damages of the plaintiff, on the second breach of the condition of said obligation assigned in said special replication to $572.95, subject to the opinion of the Court on a case stated.
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The case stated is as follows, in substance, that:
In April, 1795, Jonathan Crockett died intestate being in his lifetime and at the time of his death seised of certain real estate and possessed of certain personal estate, and leaving a widow, named Sarah Crockett, and one child only, namely the aforesaid plaintiff Morgan Crockett. The said M. Crockett was born on October 19, 1794.
On May 11, 1795, letters of administration on the estate of said Jonathan Crockett were granted to the said Sarah Crockett, she giving bond with sureties as the law required, prout etc., and she took into her hands and possession the personal estate of said Jonathan Crockett. On October 8, 1795, said Sarah Crockett married William Numbers, and upon this marriage the personal estate which was of Jonathan Crockett came to the hands and possession of said William Numbers. On December 11, 1795, William Numbers was appointed by the Orphans’ Court of Kent County guardian of said Morgan Crockett, and gave bond with said Jesse Ford and Mark Lewis, his sureties in $1500, which bond was joint and several, and was given in evidence at the trial, prout, etc. The said William Numbers held the said personal estate, which was of the said Jonathan Crockett in his hands and possession till the Spring of 1796 when he sold the same at vendue.
On March 1, 1804, said William Numbers passed an administration account upon the estate of said Jonathan Crockett, wherein he accounted for said personal estate of Jonathan Crockett, of which estate there remained in his hands, after the allowance and deduction of debts, funeral charges and just expenses, an unappropriated balance of £143.1.11¾ prout said account.
On July 24, 1804, said William Numbers passed an account of his guardianship of the said M. Crockett, wherein he accounted for the rents of said Morgan’s real estate, but for no part of said Morgan’s share of said personal estate which was of the said Jonathan Crockett, or the aforesaid unappropriated balance thereof, and on said account there was due to said M. Crockett a balance of £67.13.7 prout
said account.
On December 13, 1805, said William Numbers died. No part of said M. Crockett’s share of the personal estate which was of said Jonathan Crockett, nor of the aforesaid unappropriated balance thereof, was ever paid or delivered over by said William Numbers, his executors or administrators, and no part of his the said Morgan’s share of the said personal estate of said unappropriated balance thereof has ever been paid or delivered to the said Morgan, but the same remains in arrears and unpaid, nor was any interest
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calculated in the aforesaid administration account upon any sum carried into the same, and the said unappropriated balance of £143.1.11¾ was the residue of said personal estate clear of interest.
It is agreed by the parties and their counsel, in the above cause, that the record of the grant of the aforesaid administration, the aforesaid administration account, the aforesaid guardian account, the aforesaid guardian bond, and the petition of the said William Numbers to be appointed guardian shall make a part of this case, and be deemed as stated at large herein.
But whether or not upon the whole matter stated as aforesaid the plaintiff Morgan Crockett can by force and virtue of the bond aforesaid demand and recover against the said Benjamin Blackiston, administrator as aforesaid, damages on occasion of the aforesaid default in this, to wit, that no part of the said Morgan Crockett’s share of the aforesaid personal estate which was of the said Jonathan Crockett, or of the aforesaid unappropriated balance thereof of £143.1.11¾ was ever paid or delivered over by the said William Numbers, his executors or administrators, and that no part of his, the said Morgan’s, share of the said personal estate, or unappropriated balance thereof has ever been paid or delivered over to him the said Morgan Crockett but that the same remains in arrears and unpaid is reserved for the consideration and judgment of the Court. And if upon the whole matter aforesaid it shall appear to and be considered by the Court that the said Morgan Crockett can by force and virtue of said bond demand and recover damage against the said Benjamin Blackiston, administrator as aforesaid, on occasion of said specified default, then the said Morgan Crockett shall by virtue of said verdict and the judgment to be entered thereon recover all the damages assessed by the jury in the said verdict, upon all the breaches assigned in the special replication in this cause, but if it shall appear to be considered by the Court that the said Morgan Crockett cannot, by force and virtue of said bond, demand and recover against the said Benjamin Blackiston, administrator as aforesaid, damages on occasion of said default, then the said Morgan Crockett shall by virtue of said verdict and the judgment thereon to be entered recover only the sum of $195.04, the damages assessed in said verdict upon the breach first assigned in the special replication with interest and costs, and no part of the damages assessed on the breach secondly assigned in said special replication.
It is further agreed in said case stated, that it shall be considered as a special verdict and that a writ of error may be brought on the judgment rendered thereon, and that the case
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stated and the opinion of the court thereon shall be sent to the High Court of Errors and Appeals.
And if upon the whole matter aforesaid it shall appear to be considered by the High Court of Errors and Appeals that the said M. C. can by force and virtue of said bond demand and recover damages against the said B. B., administrator as aforesaid, on occasion of said default afore-specified, then the said M. C. shall by virtue of said verdict and the judgment thereon recover all the damages assessed in the verdict aforesaid, but if it shall appear to be considered by the High Court of Errors and Appeals that upon the matter aforesaid the said M. C. cannot by force and virtue of said bond recover damages against the said B. B., administrator as aforesaid on occasion of said default then the said M. C. shall by virtue of said verdict and judgment thereon recover only the said sum of $195.04 with interest and costs, and no part of said damages on occasion of said breach secondly assigned in said special replication.
It was argued that the judgment should be of assets.
October Term, 1817, curia advisare vult. March Term, 1818, continued and ordered to be reargued next term. October Term, 1818, the Supreme Court rendered the following judgment:
And now, to wit, this October 23, 1818, this case coming before the Court in presence of counsel on both sides, and the premises being seen and understood by the Court, it is therefore considered by the Court that the plaintiff, the aforesaid Morgan Crockett, cannot recover by means of the premises against the defendant, as administrator aforesaid, the damages assessed by the jury as aforesaid on occasion of the breach secondly assigned in the replication aforesaid, and therefore that judgment of assets be specially entered as following, to wit, judgment for the plaintiff of assets, and that he have execution of $195.04, the damages assessed by the jury on occasion of the breach first assigned in the special replication with interest from the date of the verdict, and costs of suit, and that he shall never have execution of the residue of the damages assessed by the jury as aforesaid on occasion of the breach secondly assigned in the replication aforesaid.
Upon this judgment the writ of error was brought, and at June Term, 1819, the following errors were assigned:
1. For that by the record aforesaid it appears that it was considered and decided by the said Supreme Court that the
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said M. C. could not recover by means of the premises in said record contained against the aforesaid B. B., administrator as aforesaid, the damages assessed by the jury as in said record set forth on occasion of the breach secondly assigned in the replication contained in said record, whereas the said M. C. says and insists that he could and ought to recover by means of the said premises against the said B. B., administrator as aforesaid, the said damages assessed by the said jury on occasion of the breach secondly assigned in said replication.
2. There is also manifest error in this, to wit, that by the record aforesaid it appears that according to the form and effect of the judgment aforesaid the said M. C. cannot have execution of all the damages which were assessed by the jury who tried the issues in said record contained, but that he to precluded by the special form of the said judgment from having execution of the greater part of the damages assessed by the said jury.
3. There is also manifest error in this, to wit, that by the record aforesaid it appears that a part of the aforesaid judgment is in the following words, viz, “And that he have execution of $195.04 the damages assessed by the jury on occasion of the breach first assigned in the replication, with interest from the date of the verdict and costs of suit; and that he shall never have execution of the residue of the damages assessed by the jury on occasion of the breach secondly assigned in the replication aforesaid.” Whereas the said M. C ought to have execution of all the damages assessed by the jury aforesaid on occasion of all the breaches assigned in the replication aforesaid, as by the record and proceedings is manifest.
4. There is also manifest error in this, to wit, that it appears by the record and proceedings aforesaid that the judgment aforesaid in form aforesaid rendered, is not so beneficial to the said Morgan Crockett as the same ought to have been. Therefore, in that there is manifest error the said Morgan Crockett prays [etc.][2]
October 22, 1821. Hall for plaintiff in error. . . . [J. M. Clayton
for defendant in error.]
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This case was argued before RIDGELY, CHANCELLOR, WARNER, WAY and COOPER, Justices of the Court of Common Pleas and BATSON, Justice of the Supreme Court. BOOTH, Chief Justice of the Court of Common Pleas, was absent. It was held under advisement until December 1, 1821, at an adjournment of the High Court of Errors and Appeals, when RIDGELY, CHANCELLOR, delivered the opinion of the Court, the same judges being present who heard the argument, except BATSON, Justice of the Supreme Court.
[PER CURIAM.]
The circumstances or facts upon which this case depends appear in the record, and therefore it is unnecessary to repeat them here. Numbers being dead, this is a suit against the administrators in the guardian bond. The real controversy is whether the sureties in the administration, or guardian bond, are liable for £143.1.11¾, the unappropriated balance in the administration account. There are two questions: first, whether this debt due on the administration account is extinguished by Numbers being appointed guardian of Morgan Crockett, the heir of Jonathan Crockett; and secondly, whether Numbers has retained this debt, either by his own act or by act of law, so that his sureties in the guardian bond are chargeable.
First, this is no extinguishment of the debt. The appointment of guardian is an act of law, and it cannot on any principle be presumed to be an extinguishment. If a testator makes his debtor his executor, it is a release of the debt, 8 Co. 136, 1 Salk. 300, and many other cases; but the debt will be assets to pay debts and legacies. See 1 Com.Dig. 336, title, “Administration.” There are various reasons assigned why the appointment by an obligee of his obligor, executor, is an extinguishment of the debt. One is that the executor cannot sue himself; another is that a personal action once suspended by the act of the party is gone forever. Lord Holt, 1 Salk. 305, says that it is because the same hand is to receive that is to pay; but that the rule does not always hold. And he states that if the obligor makes the obligee his executor, though there be the same hand to receive and to pay, it is no extinguishment, unless the executor has assets; so if the obligor takes administration to the obligee, though the same person has a right to receive who is to pay, it is no extinguishment, because the administration is made such by the act of law; and if the executrix of the obligee takes the obligor to husband, this is no extinguishment of the debt, because the husband is to receive it in auter droit.
Powell, in his argument in the case of Washford v. Washford, 1 Salk. 303, has assigned perhaps the
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best reason. He said that the[3] extinguishment is not wrought by way of actual release, because then the debt could not be assets, but by way of legacy. And this seems by Comyns in his Digest, 1 Com.Dig. 337, title, “Administration”, in a note, and by Hargrave in a note in Co.Litt. 264b, to be thought to be the true reason. Most of the other reasons are as applicable to an administrator as to an executor; for he could no more sue himself than an executor could, and the action would be equally suspended, and he also would be to receive and pay.
When the debtor is appointed guardian there is no more reason that that should extinguish the debt than where he is appointed administrator. The guardian is appointed by the act of law; he is the trustee of the ward, and the money is due in the ward’s right. Where the obligee made his obligor executor during the minority of a plaintiff, who became executor at sixteen, this was no suspension nor extinguishment because the executor was only executor in trust for the plaintiff during his minority. 1 Ld. Raym. 605. See Cro.Car. 372. So where one is possessed of a term as executor or in right of his wife, and purchases the fee, this is no extinguishment of the term, for he holds in different rights. Com. 67, 69. The principle of the cases fairly warrant the conclusion that the appointment of William Numbers guardian of Morgan Crockett did not extinguish the debt on the administration account, for the rights were different, and his appointment was the act of the law and not the act of the party. The case of Loockerman’s Administrators v. Patten’s Administrator
was not like the present. There one of the points debated and decided, and which is the same referred to, was whether the husband, who died before his wife, had so reduced the wife’s share of the personal estate of her former husband, Vincent Loockerman, the intestate, into possession, that it should go to his representatives. There was no controversy about the right of either husband or wife to retain it; the heirs made no pretension to it. The contest was between the representatives of the wife and the representatives of the husband, and depended on the question of possession in the lifetime of the husband.
Second, even if Numbers had a right to retain this debt as guardian, he has not done so. In the administration account he leaves the charge in full force against him, or against him and his wife; and in the guardian account no mention is made of it. He then has not retained it; and unless by his own act or by the act of law he had been compelled to transfer this charge to his guardian
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account, it is not easy to imagine how he, a debtor in one character, should be charged in another. If the obligee appoints the obligor executor, and he refuses to prove the will, it is no release of the debt. 1 Salk. 302, 304, 307.3 Term 557. The pleading or giving in evidence a retainer is a voluntary act, and if the party having a right to retain, neglects or refuses to do so, he certainly can have no benefit of the right. This money Numbers should have claimed to retain in right of his ward, and until he did so or was compelled to do so, the debt not being extinguished, it still remains a charge against the administrators of Jonathan Crockett and their sureties. This is a question of more importance to sureties than to the administrator, who is also guardian; and if in such case an administrator will not charge himself as guardian, it might, under circumstances, be a good reason to compel him to give counter-security to the sureties in the administration bond. Perhaps there is no doubt but that such a guardian might be compelled to charge himself with such money in settling his guardian account; but as that is not the question now, we will not say so. However, as it has not been done, either by himself or by any proceeding against him, it is the unanimous opinion of the Court that the judgment be affirmed.
Judgment affirmed.
NOTE. This question was argued, and considered by the Court, on the broad ground whether the sureties of a guardian, which guardian is also administrator of the estate of his ward’s ancestor, is liable on the guardian bond, the administrator not having charged himself nor being charged in his guardian account with the balance of the personal estate coming to his ward as heir of the intestate. But in fact Numbers was not the administrator of Jonathan Crockett. He married the administratrix, and in her right administered the estate. It does not appear which of them died first; but if he survived her, the estate which went into his hands could not have been recovered of him on the administration bond. The wife and her sureties only, after his death, or if she died first, her administrators and her sureties only in his life were liable on that bond. The remedy against Numbers himself, if he survived, would have been by a bill in chancery, and he would have been liable for such goods only as went into his hands, and not for the goods which his wife took and disposed of before marriage. The case, though, states that all the goods went into Numbers’ hands, therefore this question might well be decided on a suit upon the guardian bond.
This decision settles the question [of] the liability of sureties of the administrator and sureties of the guardian. In future the
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accounts must guide the parties. If no administration account has been settled, or if one has been passed, and the ward’s share of the personal estate has not been transferred to the guardian, the sureties of the administrator will continue liable. It will be sufficient for an executor or administrator to credit himself in his administration account by retaining the legacy or distributive share of his ward as guardian. This would be evidence of his act of retainer. And so if the same is transferred to his guardian account, and he is therein charged with it.
The sureties of executors, administrators and guardians may now see by the accounts their responsibility, and then may resort to a remedy for their indemnity, if necessary.