Gould v. Dutton — 2 Del. 472

Majority

p. 472

HICKLIN GOULD vs. JAMES DUTTON.

Headnote

A probate is necessary in an action against an administrator, though the suit was brought against the deceased in his lifetime.

Assumpsit. Narr. Pleas. Issue. Death of the defendant suggested, and his executor made a party of record.

The action was upon a note of hand which plaintiff proved, and rested.

Mr. Wales, for defendant,

moved a nonsuit for want of a probate.

Gilpin.

Probate is not necsssary. The action was brought before the death of Dutton, and the case at issue ; not, therefore, a case within the mischief of the act requiring probates before an executor shall pay demands against him as executor. The demand was made against the deceased. This court decided to that effect in Cleaver’s adm’r. vs. Starr.

Mr. Hamilton

suggested, that that was the case of an appeal from the judgment of a justice of the peace, rendered against the appellant’s testator in his life time.

Per Curiam.

Show us your authority. I can ■well understand the propriety of such a decision on appeal, or in a scire facias where the judgment was rendered against the party in his lifetime. But the act of assembly expressly provides that “ before an executor or administrator shall pay any debt demanded as due from the deceased, the person holding such debt shall make affidavit declaring upon oath or affirmation, that nothing has been paid or delivered towards satisfaction of said debt, except what is mentioned, and that the sum demanded is justly and truly due. Digest 226. I can see no reason why the estate should not be protected by probate from demands against the executor, in suits brought before the testator’s death, but not prosecuted to judgment, as well as in suits brought against the executor himself. If Mr. Gilpin thinks upon reflection that we are wrong, we will hear a motion during the term to take off the nonsuit, and he can then produce the authority cited.

was absent, and the court asked the late chief justice Thomas Clayton, if any decision had been made to the effect stated. “ He did not recollect any precise decision, but whilst on the bench he entertained the opinion, taking the present law in connection with the old one, (1 Del. Laws, 421,) that a probate in such case was not necessary.”

p. 473

Gilpin, for plaintiff,

Wales, for defendant.

We adhere to our opinion. The language of the act under which we are now acting, is as express as words can make it. And it additionally enjoins that ,f if affidavit, as required by this section, be not produced in an action against an- exeuutor or administrator for a debt against the deceased, the court shall on motion, give judgment of nonsuit. This is an action against an administrator, he having been made a party, though the suit was not originally instituted against him.

Let the nonsuit be entered,