State Ex Rel. Hukill's Adm'r v. Cornwell

2 Del. 473

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam.

The act prescribing the mode of selling intestate' lands for payment of debts, requires the administrator to exhibit a true list of debts; and it must be taken to be true until the contrary appear. This list states these debts to be accounts. We must take , them to have been such. The account before the register states them as judgments; we must take that to be so also, until the contrary appear ; but it is not inconsistent with the statement before the Orphans’ Court. It shows that the judgment was recovered after that statement.

Now, the account before the register is evidence that such debts were paid, and that there was proof of such payment before the register ; that is all which the decree of the register purports to ascertain. But it is not evidence that the payments are in due order. The register could not know of outstanding debts. A prior judgment creditor may recover against an administrator for a misapplication of assets, without excepting to the administration account.

The evidence, therefore, furnished by these statements before the Orphans’ Court and account before the register is, that the judgments of Deakyne and Donoho, though recovered against the administrator, as was Hukill’s also, were subsequent to Hukill’s in point of time; and the act {Dig. 234,) requires these funds to be applied as personal assets according to priority. None of the judgments are liens; all being judgments before justices of the peace.

As to Cornwell’s account, if it appeared that it was for servant’s wages it would havé a preference; but this does not appear.

Yerdict for plaintiff.