Dahlgren v. Peale

24 Miss. 142

• Court: Court of Appeals of Mississippi
• Decided: April 15, 1852
• Status: Published

Opinion

Mr. Justice Yerger

delivered the opinion of the court.

This record presents the following question. Is the trustee of a bank, whose charter has been declared forfeited, according to the act of 1843, compelled to receive from the administrator of an insolvent estate, in payment of his pro raid dividend, as reported by the commissioners of insolvency, the notes of the bank acquired by the administrator, subsequent to the date of the report ? The statute, on the subject of insolvent estates, provides for a distribution .of the assets among all the creditors, in proportion to the sums respectively due and owing. It likewise provides, that all the real and personal estate shall be sold, and after the order of sale, directs the appointment of commissioners, who shall receive and examine all claims against the estate, and report a list of all claims that shall be laid before them, with the sums they shall allow on each respective claim ; and the probate court, after the payment of certain preferred claims, shall then proceed to order the residue and remainder of the estate, both real and personal, -to be paid and distributed to and among the creditors whose claims have been examined,, in proportion .to the sums respectively due to each. Hutch. Code, 667, 668.

Nothing would be plainer, according to the general rules of law, than the proposition, that the administrator, after the declaration of insolvency, the report of the commissioners, and order for distribution, could not pay the amount of the dividend awarded to the trustee of the bank in the notes of the bank acquired by him subsequent to the report of the commissioners. But he would be compelled to distribute and pay the amount of the dividend out of the specific fund in his hand, as administrator.

But it is said that this rule is changed by the 2d section of the act of 22d February, 1840, Hutch. Code, 328, which declares that all banks in this State, “ shall, at all times, receive then respective notes at par, in the liquidation of then- bills receivable, and other claims due them; ” and also by the 8th section of the act of 1843, Hutch. Code, 331, which provides that the trustees appointed under that act “ shall at all times receive the issues of the banks in payment of any debts due the same.” The language of these statutes is so broad, that we do not feel ourselves at liberty to disregard them, or to make an exception in favor of a debt due by an insolvent’s estate, where the law has made none.

Of course the surplus of specie in the hands of the administrator that may remain, after purchasing the notes of the bank, will constitute a fund for distribution among the creditors, and cannot be otherwise appropriated by him.

Let the judgment of the probate court be reversed, and the cause remanded.