Quigg v. Kittredge & Tr.

On the reversal of the judgment, a right of action accrued to Kittredge, to recover back the money which he had paid. 24 Wend. 32, Maghee v. Kellogg. There was a debt due to.him, which he might enforce by presenting it to the trustee as executor. Foreign attáchments may be maintained against an executor or administrator of a solvent estate. It has been decided that this process lies against an insolvent estate, to obtain the amount due to a creditor who has had a claim allowed (2 N. H. Rep. 394, Adams v. Barrett), and against any executor or administrator, to recover the share of an heir in the personal estate. 20 Pick. 563, Wheeler v. Bowen. The executor, therefore, may be chargeable in this case, unless the suit conflicts with some other provisions of the statutes.

> It is objected that the claim has not been presented to this executor. It is clear that Kittredge could not have maintained any action until he presented his claim. One reason of the statute is, that the estate ought not to be subjected to expenses and costs, without an opportunity for the executor or administrator to make payment. So actions cannot be maintained by the party entitled, against attorneys, sheriffs, agents, &c., who have moneys in their hands, collected, until a demand has been made. So bailees are not answerable in many cases, until there has been a demand. So administrators of insolvent estates cannot be charged until demand, after a dividend has been declared, nor administrators generally, for the share of an heir. But they may be charged as trustees, although there has been no demand. The reason is that the process of foreign attachment is not regarded as an adverse suit, as against the trustee. Instead of being subjected to costs, he recovers costs, and these are regarded as an indemnity. The fact that the claim was not presented, therefore, furnishes no objection to this suit. The statute applies only to suits by the creditor against the executor or administrator. But it is further objected, that no action can be maintained, because more than two years have elapsed, and that the claim against the estate is therefore barred. No doubt a claim must exist in favor of the principal debtor, at the time of the process, which he could enforce against the trustee. The creditor of the principal cannot have any greater rights in this respect than his debtor might exercise. If the debt is barred, it is like any other debt barred by statute. But in this case the limitation does not apply. The demand depended on a contingency— the contingency of a reversal of the judgment; and the right to the money did not accrue to Kittredge until more than two years after the grant of administration. lie might have proceeded to enforce his claim when this action was instituted. The prosecution of the writ of error against the executor was a sufficient exhibition of the claim, and there is no special limitation, except the settlement of the estate, for such demand. Statute 1822 (ed. 1830), 338. See also Revised Statutes, chap. 161, sections 5, 6. It does not appear that there has been any settlement of the estate of Jacob Elliot; and it is doubtful at least if any could have been made which would bar this claim, under the existing state of the other facts.

Another question arises as to the form of the judgment, and the proper process for enforcing it. When an action is maintained against an executor or administrator, after a decree of the probate court, requiiing him to make payment, — as, for a dividend on an insolvent estate after a decree of distribution, — as nothing remains to be done but the payment of the money in his hands, judgment is rendered de bonis propriis. But, as a general rule, when the action is founded on a debt due from the testator or intestate, without such decree, the judgment is against the goods and estate of the testator, or intestate. The same rule prevails in a process of foreign attachment against the executor or administrator. In this caáe there must be judgment against the goods of the testator in the hands of the trustee. That would have been the judgment to which Kittredge would have been entitled, if he had maintained a suit. No interest can be allowed. There was no duty to pay to Kittredge which was violated. So far as appears, there was no demand by him after the reversal of the judgment. He, therefore, could not have claimed interest when this process was commenced. After this action was instituted the trustee could not pay to Kittredge, nor had he the right to pay the plaintiff. Ho was, therefore, in no default. Attorneys, agents, &e., having the money of the principal in their possession, cannot ordinarily be subjected to the payment of interest, until after a demand.

Trustee charged. Special execution against the goods of the testator in his hands.