Pinney v. Administrators of Johnson — 8 Wend. 500

Majority

p. 500

Pinney vs. The Administrators of Smith Johnson, deceased.

ALBANY,

Jan. 1832.

Headnote

A judgment against administrators upon bond and warrant of attorney, executed by them, does not bind the estate of the intestate, so that it can be taken upon an execution issued thereon; nor can such judgment be pleaded by the administrators in support of a plea of pleno administramt prater &c.

Demurrer to replication. The declaration is of February term, 1828, and contains counts on two promissory notes made by the intestate, and also the money counts. The defendants plead first the general issue, and second a special plea, setting forth 1st, an outstanding debt by bond from the intestate to A. B., on which there is due $532, and 2d, that one D. Sprague, after the death of the intestate, to wit, in October term, 1827, by bill, impleaded the defendants, as administrators of the intestate, in a plea of debt for $4473,26, due and owing to Sprague from the defendants, as administrators for certain promises and undertakings made with (by) the said Smith Johnson in his life-time; that such proceedings were thereupon had that Sprague afterwards, to wit, on the 22d January, 1828, recovered against the defendants as administrators aforesaid his said debt, and also $14,59 costs, to be levied of the goods and chattels of the intestate in the hands of the defendants, to be.administered if, &c. and if not, then the costs of their proper goods and chattels; that such judgment was obtained for a true and just debt due and owing to Sprague by the intestate, and for certain liabilities Sprague had incurred for the intestate, and that at the time of the rendition- of the judgment, there was due and owing to Sprague $2251,22; that when such judgment was obtained, the defendants had fully administered all the goods and chattels of the intestate which had come to their hands, except $1, which was insufficient to pay the bond set forth in the plea and the judgment in favor of Sprague. The plaintiff replies that the defendants had sufficient assets to pay the bond set forth in the plea, and also the damages claimed by the plaintiff; and as to the judgment obtained by Sprague, that after the death of the intestate, and after the commencement

p. 501

<of this sun, to wit, on the 19th January, 1828, the defendants executed a bond and warrant of attorney to Sprague, describing themselves therein as the administratrix and administrator of the intestate, in the penal sum of $4473,26, conditioned for the payment of $2236,63, and that the judgment in favor of Sprague was rendered upon, and by virtue of such bond and warrant. To this replication the defendants demur.

D. Burwell, for defendants.

The replication is bad. Administrators may give preferences by confessing judgments. The manner in which it is done is immaterial; if the judgment confessed be bona fide, it will be sustained. 5 T. R. 235. 1 Ld. Raym. 589. 2 Atk. 386. 14 J ohns, R. 446. 2 Kent’s Comm. 336. 2 Shep. Touch. 475. 3 Wendell, 305, and cases cited. 5 Taunt. 665, 333.

N. S. Benton, for the plaintiff.

The defendants having bound themselves personally to pay Sprague, cannot set up the bond executed by them, or the judgment entered thereon, as protecting them in their representative character. An administrator cannot charge the assets in his hands by any contract originating with himself. 1 Mass. R. 58 . 8 id. 199 . Naming himself administrator in a bond executed by himself is surplusage; he is chargeable in his own right, and the plaintiff, in a judgment on such bond, cannot take the estate of the intestate in execution; by accepting the bond, he discharged the debt against the intestate. 1 Dallas, 347, n. The counsel also cited 6 Mass. R. 108 , 190 ; Strange, 20 ; 8 Johns. R. 120 ; 2 Cowen, 781; 2 Selwyn, 591, 5; 1 Maule & Selw. 395; 5 T. R. 7 ; 6 id. 453 ; Toller’s Law of Exrs. 463; Cowp. R. 289, 293; 7 Bro. Par. Cas. 551; Cro. Eliz. 91 ; 1 Vesey, 125 ; 2 Brod. & Bing. 460 ; 14 Johns. R. 446.

Burwell, in reply.

The replication admits the amount due to Sprague, and that the judgment was rendered for a true and just debt due to him; if the plaintiff denied the bonafides of the judgment, he should have replied per fraudem. 1 Starkie. 252.

It seems to be well settled upon authority, that a judgment upon a bond or other security given by an administrator or executor, though in his repreMutative .character, does not bind the estate which he represents, nor can it be taken upon the execution issued thereon. The description of the defendants in the bond as executors or administrators, is surplusage, and they are chargeable upon such a bond and judgment only in their own right. It is their personal contract, and whatever their rights may be, under such a bond or judgment if paid by them, in their settlement with the estate which they represent, it is not a legal debt or judgment against such estate, and cannot be pleaded as such. Geyer v. Smith, 1 Dall. 347 ; 1 Mod. 225 ; 10 id. 254; Croke Eliz. 406; 9 Coke, 93 ; 6 Mass. R. 58 ; 8 id. 199 , where the doctrine upon this subject is very elaborately discussed. 1 Maule & Selw. 395. 7 Taunt. 580. 8 Johns. R. 120. If the bond and warrant of attorney could be considered merely as the means of confessing a judgment, then such a judgment would stand upon the same footing with a judgment by cognovit, and would be de bonis testatoris; but the bond is a security entirely independent of the warrant of attorney, and the debt of the intestate for which it was given is merged in the bond, and becomes the individual debt of the obligors. The replication is therefore good, and the plaintiff is entitled to judgment upon the demurrer, with leave to the defendant to rejoin, on payment of costs.