Deringer's administrator v. Deringer's administrator

p. 528

Theophilus T. Deringer’s administrator v. Bronough M. Deringer’s administrator.

Headnote

The making of a prohate against the estate of a deceased person hy the treasurer of an incorporated company appointed administrator of the deceased creditor in another State under an act of incorporation chartering it for such purposes is not warranted hy the provisions of our statute in regard to prohates.

This was an action of assumpsit on due bills, promissory notes, and other written promises to pay money, numbering twelve in all, made in the years 1854, 1855, 1856, 1857, and 1861, by the decedent of the defendant to the decedent of the plaintiff, and was commenced on the 14th day of October, 1874, with the usual pleas and plane administravit, and no assets beyond one thousand dollars which is admitted to be due to the plaintiff. The counsel for the plaintiff, after proving partial payments and admissions of a continued indebtedness on these several demands made by the former to the latter decedent within six years prior to the commencement of the action to take it out of the operation of the statute of limitations, which was one of the pleas in the case, produced 'and tendered to the court the probate of the plaintiff’s demand to the amount of eight thousand nine hundred and twenty-eight dollars and fifty-one cents, made by The Fidelity Safe Deposit and Trust Com-

p. 529

pony of the State of Pennsylvania, administrator of Theophilus T. Deringer, deceased, and which was executed by the treasurer of the company.

G. JB. Rodney, for the defendant,

objected to it because probates against the estates of deceased persons are provided for and prescribed by our statute, and are absolutely required by it for the protection of such estates against unjust and illegal demands, and our courts have always held that it must be properly complied with according to the true intent and meaning of it. For a “debt due to a corporation,” it very properly provides that the probate shall be made by the cashier or treasurer of it; this, however, was not a debt due to this corporation within the obvious meaning and intention of the statute, and for the justice of which it requires the solemn oath or affirmation of such an officer of the corporation to be taken when it is due to such corporation in its own inherent right, but if due to any one it was due to Theophilus T. Deringer in his lifetime, and to his estate, as we express it, which is the same thing, now that he is dead.

(Spruanee with him) replied that it had been decided by the highest court in the State that this corporation is competent to maintain this action in this court as the administrator of Theophilus T. Deringer, deceased, duly appointed in the State of Pennsylvania under its act of incorporation in that State, and this being a debt due to it as such, the probate could be and had been probably made by it in such a case.

The Court,

dissenting, sustained the objection and rejected the probate for that reason and as unwarranted by the statute. Notwithstanding the ruling, however, the counsel for the plaintiff proceeded to the jury and requesting the court to instruct them to that effect, which they did, they returned a verdict for the defendant, on which the counsel for the plaintiff gave notice that they would tender a bill of exceptions to the charge of the court.