Bissell, J.
The case turns entirely upon the effect of the assignment. On the part of the defendants, it has been con - tended, that its legal effect was, to vest all Couch's interest ¡in,. and title to, this demand, in Smith, the assignee : that upon the delivery of the deed, Morehouse ceased*to be the debtor of Couch, and became the debtor of Smith : that this was an assignment coupled with an interest; and, therefore, not revolted, bv the death of Couch : that inasmuch as the trusts crealed by the deed remained unexecuted, it could not be known, that there was, or would be, any residuary interest, in favour of the estate ; and of course, there was nothing, of which ¡he [481]*481| Administrator could take notice, or which he was bound to ¡inventory; that admitting there was a residuary Smith was the debtor to the amount of such interest ; and, ; therefore, the defendants could not be subjected, under the - breach assigned,
I yielded my assent to these claims of the defendants, on the trial of the cause below ; and, accordingly, instructed the jury, that the legal effect of the deed of assignment was such, that there was no debt due as claimed, from John Morehouse to Couch, at the time of his decease, either in law or equity, of which he, Morehouse, could have knowledge, and which ho was bound to inventory ; and, therefore, as his not inventorying this debt, was the only breach assigned, their verdict must be for the defendants.
I have reason to be satisfied, that I then took a mistaken View of the case, and that the charge to the jury is incorrect.
It may here be remarked, that the assignment to Smith, was made to him in trust — in the first place, to pay and sat^ jisfy all the charges and expenses incurred in executing the j trust, together with a reasonable compensation to him for his I'services ; then to pay a single specified debt, amounting to about 70 dollars, in full; then to apply the balance in payment of all the other debts of Couch, in equal proportions ; „ijand the residue, if any, to be paid as he should direct,
The replication, after adverting to the assignment, and the trusts aforesaid, avers, that Smith lias never executed the trust; the appointment of one of the defendants as administrator on the estate of Couch, having prevented and defeated the execution thereof; that admitting said trusts to be executed, there is a residuary interest, of the value of 3000 dollars, belonging to said estate ; and that the debts due therefrom, amounting to 406 dollars, 58 cents, and interest thereon from the 16th day of December, 1830, remain wholly due and unsatisfied.
Upon the trial of the cause, evidence Was offered to prove, in addition to the facts above stated, that Smith had never acted under the deed ; that the estate of Couch was represented I insolvent, and that commissioners were duly appointed ; that the specific debt mentioned in the assignment, was exhibited I to, and allowed by them ; that all the debts allowed by them, amounted to the sum of 406 dollars, 58 cents, before stated : [482]*482and that the property belonging to said estate, as inventoried, . amounted only to the sum of 53 dollars, 3 cents.
Upon this state of facts, the question arises, whether the administrator was bound to inventory, or to embrace in his administration account, the demand now under consideration ?
It is, undoubtedly, the intent of the law, that all the estate of a person deceased, shall be represented to, and passed upon by, the court of probate; and especially, is this true, when the estate is insolvent. The provisions of the various statutes on the subject, all proceed upon this idea. It is made the duty of the administrator, well and truly to administer all the goods, chattels, credits and estate of the deceased, which may come to his knowledge. These terms are exceedingly broad, and •comprise within their meaning every possible species of property.
Was there, then, any property, of which this administrator had knowledge, and which he ought to have placed upon the records of the court of probate 1
It is, perhaps, unnecessary to decide, whether he was bound to inventory his entire debt to Couch, without any regard to the assignment; although it is very clear, that he might have done so, with entire safety to himself. Had he inventoried this debt, and applied it, as he might, and ought to have don in satisfying the debts due from the estate which he represented, so far he would have accomplished that, which it was the great object of the assignment to accomplish ; and the created by that deed, would have been entirely The debt would have been rightfully paid ; and as to any surplus, if it had been already in the hands of Smith, the administrator, as the representative of Couch, would have had a right to direct the payment of it to himself.
Smith, it should be remembered, had no legal claim up this defendant, being the assignee of a mere chose in actio His only relief would have been in chancery. And what possible ground could there be for the interference of a court ¡ chancery, when the trust created by the deed, had been t ready discharged; and when the only object in drawing money from the hands of the administrator, would be to place it there again ?
He might, therefore, have inventoried this debt, arid hare [483]*483applied the moneys due upon it, in a regular course of administration, without the slightest danger or hazard to himself. am by no means satisfied, that it was not his duty to do so ; and especially, as for aught that appears, Smith had never acted under the assignment; and so far from manifesting any intention of doing so, had proved his own debt under the commission ; and the more especially, as this course was directly calculated to bring the settlement of the estate to a speedy close, and to do entire justice to all parties in interest,
But whatever might have been his duty, in regard to the entire debt, it is very clear, upon the facts stated, tha,t there was a residuary interest, of which he had notice, and which was assets in his hands, either for the payment of debts, or for the purposes of distribution.
Why should not that interest, be it what it might .have been embraced in the inventory, or in some other way accounted for ? It was already in his own hands; and, as has been before remarked, there could be no pretence for calling it out, under this deed of assignment. The deed itself would have protected him, with respect to the surplus. There is, therefore, no pretence for saying, that he could not, safely, have adopted this course. And as little is there for claiming, that he had not knowledge of every fact necessary to be known, in order to devolve the obligation upon him. He knew the amount of his own debt to the intestate. He knew, he must have known, of the deed of assignment, and its provisions. His was the only debt assigned; and notice to him, if not indispensable to the validity, was necessary to the protection of the assignment. He knew that no step had been taken un- ¡ der the deed. None could have been taken, without his knowledge. He knew the amount of debts against the estate. The report of commissioners had settled that. He knew that he had funds, in his hands, sufficient to pay them all, and which he might safely apply to that object.
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Bissell, J.
The case turns entirely upon the effect of the assignment. On the part of the defendants, it has been con - tended, that its legal effect was, to vest all Couch's interest ¡in,. and title to, this demand, in Smith, the assignee : that upon the delivery of the deed, Morehouse ceased*to be the debtor of Couch, and became the debtor of Smith : that this was an assignment coupled with an interest; and, therefore, not revolted, bv the death of Couch : that inasmuch as the trusts crealed by the deed remained unexecuted, it could not be known, that there was, or would be, any residuary interest, in favour of the estate ; and of course, there was nothing, of which ¡he [481]*481| Administrator could take notice, or which he was bound to ¡inventory; that admitting there was a residuary Smith was the debtor to the amount of such interest ; and, ; therefore, the defendants could not be subjected, under the - breach assigned,
I yielded my assent to these claims of the defendants, on the trial of the cause below ; and, accordingly, instructed the jury, that the legal effect of the deed of assignment was such, that there was no debt due as claimed, from John Morehouse to Couch, at the time of his decease, either in law or equity, of which he, Morehouse, could have knowledge, and which ho was bound to inventory ; and, therefore, as his not inventorying this debt, was the only breach assigned, their verdict must be for the defendants.
I have reason to be satisfied, that I then took a mistaken View of the case, and that the charge to the jury is incorrect.
It may here be remarked, that the assignment to Smith, was made to him in trust — in the first place, to pay and sat^ jisfy all the charges and expenses incurred in executing the j trust, together with a reasonable compensation to him for his I'services ; then to pay a single specified debt, amounting to about 70 dollars, in full; then to apply the balance in payment of all the other debts of Couch, in equal proportions ; „ijand the residue, if any, to be paid as he should direct,
The replication, after adverting to the assignment, and the trusts aforesaid, avers, that Smith lias never executed the trust; the appointment of one of the defendants as administrator on the estate of Couch, having prevented and defeated the execution thereof; that admitting said trusts to be executed, there is a residuary interest, of the value of 3000 dollars, belonging to said estate ; and that the debts due therefrom, amounting to 406 dollars, 58 cents, and interest thereon from the 16th day of December, 1830, remain wholly due and unsatisfied.
Upon the trial of the cause, evidence Was offered to prove, in addition to the facts above stated, that Smith had never acted under the deed ; that the estate of Couch was represented I insolvent, and that commissioners were duly appointed ; that the specific debt mentioned in the assignment, was exhibited I to, and allowed by them ; that all the debts allowed by them, amounted to the sum of 406 dollars, 58 cents, before stated : [482]*482and that the property belonging to said estate, as inventoried, . amounted only to the sum of 53 dollars, 3 cents.
Upon this state of facts, the question arises, whether the administrator was bound to inventory, or to embrace in his administration account, the demand now under consideration ?
It is, undoubtedly, the intent of the law, that all the estate of a person deceased, shall be represented to, and passed upon by, the court of probate; and especially, is this true, when the estate is insolvent. The provisions of the various statutes on the subject, all proceed upon this idea. It is made the duty of the administrator, well and truly to administer all the goods, chattels, credits and estate of the deceased, which may come to his knowledge. These terms are exceedingly broad, and •comprise within their meaning every possible species of property.
Was there, then, any property, of which this administrator had knowledge, and which he ought to have placed upon the records of the court of probate 1
It is, perhaps, unnecessary to decide, whether he was bound to inventory his entire debt to Couch, without any regard to the assignment; although it is very clear, that he might have done so, with entire safety to himself. Had he inventoried this debt, and applied it, as he might, and ought to have don in satisfying the debts due from the estate which he represented, so far he would have accomplished that, which it was the great object of the assignment to accomplish ; and the created by that deed, would have been entirely The debt would have been rightfully paid ; and as to any surplus, if it had been already in the hands of Smith, the administrator, as the representative of Couch, would have had a right to direct the payment of it to himself.
Smith, it should be remembered, had no legal claim up this defendant, being the assignee of a mere chose in actio His only relief would have been in chancery. And what possible ground could there be for the interference of a court ¡ chancery, when the trust created by the deed, had been t ready discharged; and when the only object in drawing money from the hands of the administrator, would be to place it there again ?
He might, therefore, have inventoried this debt, arid hare [483]*483applied the moneys due upon it, in a regular course of administration, without the slightest danger or hazard to himself. am by no means satisfied, that it was not his duty to do so ; and especially, as for aught that appears, Smith had never acted under the assignment; and so far from manifesting any intention of doing so, had proved his own debt under the commission ; and the more especially, as this course was directly calculated to bring the settlement of the estate to a speedy close, and to do entire justice to all parties in interest,
But whatever might have been his duty, in regard to the entire debt, it is very clear, upon the facts stated, tha,t there was a residuary interest, of which he had notice, and which was assets in his hands, either for the payment of debts, or for the purposes of distribution.
Why should not that interest, be it what it might .have been embraced in the inventory, or in some other way accounted for ? It was already in his own hands; and, as has been before remarked, there could be no pretence for calling it out, under this deed of assignment. The deed itself would have protected him, with respect to the surplus. There is, therefore, no pretence for saying, that he could not, safely, have adopted this course. And as little is there for claiming, that he had not knowledge of every fact necessary to be known, in order to devolve the obligation upon him. He knew the amount of his own debt to the intestate. He knew, he must have known, of the deed of assignment, and its provisions. His was the only debt assigned; and notice to him, if not indispensable to the validity, was necessary to the protection of the assignment. He knew that no step had been taken un- ¡ der the deed. None could have been taken, without his knowledge. He knew the amount of debts against the estate. The report of commissioners had settled that. He knew that he had funds, in his hands, sufficient to pay them all, and which he might safely apply to that object. And yet, with a full knowledge of all these facts, he renders no account of his own debt; pays the assigned nothing; represents the estate insolvent ; exhibits an inventory amounting only to 53 dollars ; leaves the debts wholly unpaid ; and now seeks to protect himself under this out-standing deed of assignment, and to set the creditors at defiance. This defence has, on the face of it, an unfavourable aspect. It is strictly technical, and opposed [484]*484to the justice of the case. I believe it may be broken downA without doing violence to any principle of law. I believe here was a debt, the precisé amount of which, might have been easily ascertained ; and which it was the duty of this administrator to have placed, in some form, upon the records of the court of probate, and to have administered- according to law. 1 therefore think the charge was incorrect; and the rule to shew cause must be made absolute.
The other Judges were of the same opinion ; Petehs, J. doubting, whether the interest in question,was such estate as the law requires to be inventoried, but concurring in the results as in accordance with the justice of the case.
New trial to be granted.