1 Haw. 84 (Haw.Super. 1852), Nathan v. Administrators of Vida's Estate

Citation:1 Haw. 84
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:HENRY NATHAN v. THE ADMINISTRATORS OF THE ESTATE OF F. R. VIDA.
Case Date:December 01, 1852
Court:Superior Court of Hawai'i
 
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Page 84

1 Haw. 84 (Haw.Super. 1852)

HENRY NATHAN

v.

THE ADMINISTRATORS OF THE ESTATE OF F. R. VIDA.

Superior Court of Hawai'i.

December 1, 1852

Syllabus by the Court

A judgment creditor is not entitled to a priority of payment, over creditors by simple contract, out of the estate of a party deceased insolvent.

Mortgages or legal liens against an insolvent debtor's estate cannot be disregarded to allow other creditors to come in and share the property pro rata.

DECISION

LEE, CHIEF JUSTICE

On the filing of the account of the administrators of the estate of F. R. Vida, showing assets in their hands, Mr. Nathan, who is a judgment creditor, comes in and moves the Court to order the administrators to pay his debt in full, out of the assets in their hands, though the estate is insolvent, on the ground that a judgment creditor is legally entitled to a priority of payment over the creditors by simple contract. In other words, we are asked to adopt the order of preference prescribed by the rules of the common law, by which Nathan in this case would be entitled to a priority of payment over the other creditors.

The order of paying debts established by the common law is, to pay, first, the funeral charges and the expenses of the Probate Court, then, the executor or administrator is allowed to pay himself first among debts of equal degree; next in order of payment are debts due to the king or state; then, debts of record, as judgments, recognizances and final decrees; next, debts due for rent, and debts by specialty, as bonds and sealed notes; and lastly, debts by simple contract. Among this latter class, debts due for servants' wages and workmen, are entitled to a preference. It is said the civil law gave no preference to creditors, except as to debts incurred for funeral expenses, and the expenses of the administration and debts by mortgage. The heir paid himself first, and he might pay the first creditor who came. (2 Kent, 416.) It did, however, prefer debts of the crown to simple debts, where there was no mortgage. (1 Bro. Civil Law, 308.) ‘ Tis true, we have the power to adopt the rules of the common law and also of the civil law, under certain restrictions, and we have adopted them on this subject, so far as to allow executors and administrators to pay funeral expenses and the expenses of the administration in preference to all other debts; for this is...

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