Johnston's Estate

9 Watts & Serg. 107

• Court: Supreme Court of Pennsylvania
• Decided: May 15, 1845
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

An executor is prima facie liable for the appraised value of the personal estate, and it is his duty, within one year, at most, from the death of the testator, to sell or dispose of the deceased’s effects, and convert them into ready money, to answer the purposes of the trust. In England the property is sold for cash, and, of course, the executor is immediately chargeable with the price; but in Pennsylvania, for reasons arising out of a different state of circumstances, another rule has been adopted. The practice is to sell at a short credit, taking notes, with security, over a certain amount, payable in three and six months. This is discretionary with the executor; and when the latter mode is adopted, he is not chargeable, when he acts with good faith and ordinary care, immediately on the sale, but he becomes liable at the expiration of the time of credit; and, to discharge himself, he must show that the money, if not received, was lost without any default or negligence on his part. Thus, if he is able to prove the solvency of the purchaser and surety at the time of sale, and that, in the intermediate time, he became insolvent, or that he used ordinary diligence to obtain payment, and failed, he is entitled to an exoneration. But this it is incumbent on the executor to prove, as he is prima facie liable, and the burthen of proof is thrown on him. The intestate died on the 22d November 1839, and letters of administration were granted the 11th December 1839. On the 2d January 1840, the administrator sold to Benjamin Barr some articles belonging to the estate, and took his note for the amount, with security, payable six months after date. It is conceded the debtor and security were good at the time of the sale, so that the case depends on the question, whether the administrator has shown that the loss has arisen from circumstances over which he had no control, and not in consequence of any default of his.

The facts are, that he gives a credit of six months, and, so far as appears, takes no further steps to collect the amount due. He neither commences suit, nor does he even demand payment until six months after the note arrived at maturity, and after the time given for the settlement of the estate. It is a case, not of ordinary care, but of gross negligence, for he has failed to show that he made any efforts whatever, in proper time, to recover the money. A mere application for payment, without more, would not have availed him. To entitle him to a credit, he must, in addition, prove that he took legal steps to recover the sum due, or that, from the notorious insolvency of the debtors, a suit would have been useless. But, so far from this being true, the probability is, that if ordinary diligence had been used, the money would have been recovered; as the proof is positive that the principal and surety were able to pay when the note fell due.

Decree affirmed.