Barker v. Wendell

17 N.H. 159

• Court: Superior Court of New Hampshire
• Decided: July 15, 1845
• Status: Published

Opinion

Gilchrist, J.

The demandant claims under a sale of the equity of redemption in the premises, upon an execution in his own favor and against Dorothy "Wendell, deceased, and the answer to his claim is, that he has waived or avoided the levy, by proving the judgment before the commissioner of insolvency appointed in the administration of her estate. It has been decided by this court that such a proceeding on the part of the demandant would have the effect for which the tenant here contends. Barker v. Wendell, 12 N. H. Rep. 119. But the demandant says that the proof and allowance of the judgment before the commissioner were of no effect, because the appointment of the commissioner does not appear to have' been warranted by a state of facts preceding that act, which wa's necessary to enable the judge of probate to make it, and that therefore all the doings of that officer, and all proceedings before him, are void.

The appointment of the commissioner is made by the judge of probate under “ an act regulating tbe settlement and distribution of insolvent estates,” passed July 2,1822. N. H. Laws 359. In order that an estate may be so administered under that act, three conditions are required. 1. “ The estate shall appear to the executor or administrator thereof to be insolvent;” 2, “ and shall be so represented to the judge of probate 3, “ and be decreed by him to be administered upon' as an insolvent estate.”

Upon the first of these conditions it may be remarked, as was said at the bar, that it cannot be shown, except from the representation, whether it actually appeared to the executor or administrator to be insolvent or not; and therefore his representation may, upon a reasonable construction of the statute, be taken as the proper evidence that it so appeared to him. At least we may assume that it is prima facie evidence of that fact. So that the question at once arises, whether the executors in the present case did represent to the judge of probate that the estate of their testator was insolvent, or whether the language used by them amounted to no-more than a statement that the estate was embarrassed. They say that “ the estate, being greatly involved, makes it necessary to represent the same insolvent. They therefore beg leave so to represent the same, and pray your honor for a commission of insolvency.”

The language addressed to the judge purports to be a representation of the condition and circumstances of the estate. What does it describe them to be ? It represents the estate as being so involved that it is necessary to represent the same as insolvent. Representing the estate as so involved that it is necessary to represent it insolvent, is in effect representing it to be in that condition. The necessity of representing it as insolvent can only arise from the fact that it is so.' It is not shown to be a matter of merq convenience or expediency to represent its condition to be as described, but a necessity is declared to exist, springing from the involved condition in which they find it. It seems that the representation was sufficiently formal for the court of probate to consider, and to found a decree, if the case seemed upon the evidence to be a proper one.

It is unnecessary to settle whether, before the passage of the Revised Statutes, an administrator might in all cases represent an estate insolvent, and procure the decree for so administering it; though the practice was to do so whenever a commission of insolvency appeared to be desirable, as a matter of convenience; and the legislature have ratified the practice by expressly authorizing such a course to be pursued in eases arising since the passage of those statutes. Rev. Stat., chap. 162, see 1. Nor is it necessary to settle whether a decree of insolvency in cases anterior to the pello cl referred to would be conclusive, without showing a representation first made by the administrator, but we have assumed that such, a representation is necessary.

But upon its appearing that such a representation was actually made, we do not think we can examine the evidence or other grounds upon which the court of probate based the decree of insolvency, or that the decree, not appealed from, can be drawn in question by evidence in another court, showing that the estate was actually solvent. The decree was upon a matter clearly within the jurisdiction of the court, and therefore conclusive.

The commissioner was therefore regularly appointed, and competent to take cognizance of the claim presented by the demandant. His presentation of it, and the allowance of it by the commissioner, were, therefore, a bar to the action, as has been before decided.

Judgment for the tenant.