Booth v. Booth's Adm'rs

2 Del. 54

• Court: Superior Court of Delaware
• Decided: July 5, 1836
• Status: Published

Opinions

This was an action of assumpsit by an heir at law, to recover his distributive balance of personal estate. The facts agreed on, were these: Joseph Booth, father of plaintiff, died, leaving two children, of whom plaintiff is one. John Booth, sen., defendant's intestate, administered on the estate of Joseph, and passed three accounts of his administration, one on the 3d May 1826, showing a balance in hand of $78 07; another on 27th March 1833, making the balance $483 78; and the third on 17th December 1834, which showed a balance due from the administrator of $1,466 84. An appeal was taken from these accounts by the other heir of Joseph Booth, on the 18th December 1834, and the same were corrected by the Orphans' Court, and the balance increased $434 68. It corrected the first as well as the two last accounts. Plaintiff was thirty-two years of age on the 15th of March 1836, and his right of appeal from the first account was barred at the time the appeal was taken, by the other heir.

The declaration contained two counts, both for money had and received; one laying the promise by John Booth, and the other by defendants as his administrators.

Frame, for defendants, objected to the administration accounts as competent evidence in this action.

The act of assembly gives the remedy by assumpsit for a distributive share, which I understand to be specifically for such share as such; and in which action, as in a suit upon the administration bond, it is necessary to set out in the narr the progress of the settlement, the balance for distribution, and the state of the heirs. This narr is not for a distributive share; but, in general terms, for money had and received. This gives no notice of the specific character of the claim, is not an action for a distributive share as such, and is not the remedy given by the act. The act does not authorize, a recovery on an implied assumpsit, as for money had and received.

Bates, contra. The law implies a promise to pay whenever one has received money which he ought to pay to another, and the action for money had and received will lie for its recovery. Comyn on Contracts 375. And this action lies against a sheriff for money received in his official capacity, and it is not necessary to set out all the facts.

Frame. — Assumpsit will lie for rent, but the narr must be special. 1 Harr. Rep. 6; 2 Johns. 346; 1 Chitty 91; 3 Binney 559. We think that the action for money had and received may be sustained for a distributive share on the general counts, and without setting out the facts or declaring specially; and that these administration accounts are therefore evidence.

Plaintiff then offered in evidence, the correction of the three accounts in the Orphans' Court, on the appeal by the other heir. Objected to.

Frame — The decision on that appeal is not admissible in evidence here as it was between other parties. It is clearly not admissible as to the first account, for at that time this plaintiff was forever barred from taking an appeal from that account. As to him it was conclusive, his rights were fixed, and the Orphans' Court had no jurisdiction as to the rights of either of these parties touching that account. It cannot be that the limitation, which is a flat bar in a direct proceeding, could thus indirectly, through the proceeding of a younger heir who was not barred, be entirely got rid of.

Bates, contra. By the constitution these accounts are to be settled according to the very right of the matter; and, as so settled, they ascertain the liability of the administrator. The accounts, either as filed or as corrected, are the only means of getting at the truth; and the truth, when thus ascertained, enures to the benefit or the detriment of all parties concerned, whether administrator, heir or creditor. The defendant here was also a party to that appeal, and he is therefore concluded as to the balance. The decrees of the Orphan's Court are moreover in their nature, conclusive on all the world. 1Harr. Rep., 486. The decree establishes a fact, a certain balance in the hands of the administrator; this fact, so established, is evidence of the liability of the administrator, no matter who calls him to account. Thus one creditor appealing, secures to all other creditors the benefit of a decree as evidence of the administrators liability. It is in other words, the highest evidence of the true balance of the intestates estate.