Cogswell v. Concord & M. R. R.

• Decision Date: 15 March 1895
• Citation: 68 N.H. 192,44 A. 293
• Parties: COGSWELL v. CONCORD & M. R. R.
• Court: New Hampshire Supreme Court

44 A. 293

68 N.H. 192

COGSWELL

v. CONCORD & M. R. R.

Supreme Court of New Hampshire. Belknap.

March 15, 1895.

Action by Amos M. Cogswell, administrator of Edgar A. Holbrook, deceased, against the Concord & Montreal Railroad, for negligently causing the death of the plaintiff's intestate, Edgar A. Holbrook, on December 10, 1892. Facts found by the court. The plaintiff was appointed administrator in February, 1893, and on June 17, 1893, executed to the defendant a release under seal of all causes of action on account of said injury. The deceased was survived by a widow and two minor children. No guardian of the children was appointed. On December 1, 1893, the widow caused this action to be brought The defendant pleaded the release in bar, and the plaintiff demurred. Overruled.

Jewell, Stone, Owen & Martin, for plaintiff.

Frank S. Streeter, Jewett & Plummer, and E. A. & C. B. Hibbard, for defendant.

SMITH, J. The demurrer raises the question whether the release pleaded is a bar to the action; in other words, whether an administrator in this class of actions has the power to release the cause of action. A debt due from an insolvent person may be compromised and discharged on payment of such part thereof as the administrator deems proper, and he shall be chargeable only for the amount received. Pub. St. c. 189, § 10; Rev. St c. 159, § 8; Gen. St. c. 177, § 9; Gen. Laws, c. 196, § 9. This is a re-enactment of the statute of July 1, 1825, which provided that judges of probate, upon application, might authorize an administrator to compound and discharge any debts or demands due to the estate, in case of the insolvency of the debtor, on receiving such sum as he should deem proper or the judge of probate might direct; and that he should not be held accountable, on settlement of his account, for any debt or demand so compromised and discharged, beyond the amount he had received. Laws 1830, p. 350. In Wyman's Appeal, 13 N.H. 18, it was said that, "before the passage of the statute [of 1825], an administrator might lawfully compound with a debtor, and receive less than the amount of the debt, if he could show that what he had done was beneficial to the estate. But he acted in some peril in the matter; for, if an objection was taken, the burden of proof lay upon him to show that he had acted judiciously, and that the estate had not been prejudiced by the compromise, and, if he failed in this, he might be made chargeable with the difference. To obviate this difficulty, and perhaps also to remove doubts upon the subject, the statute has provided a mode in which the administrator, by obtaining a previous authority from the judge, may compromise with a debtor with perfect safety, and without being subjected to expense in sustaining his acts. But the right to compromise which existed prior to the passage of the statute is pot taken away. It may still be exercised as before, subject to the same limitations and risk." So, the right of an administrator to submit to arbitration does not appear to ever have been denied. Bean v. Farnam, 6 Pick. 269, 272. In that case it was said: "The general principle is that every one having the capacity to contract, or to release his right, may make a submission to an award. If a less sum should be awarded in favor of the executor or administrator than he would be entitled to recover at law, he might be held to account for the deficiency to the heirs or other persons interested in the effects of the testator or intestate, but the award would be binding." In Chadbourn v. Chadbourn, 9 Allen, 173, it was held that this authority was not repealed or impaired by the statute empowering courts of probate to authorize executors and administrators to adjust by arbitration demands in favor of or against the estates by them represented; that "the legislature intended only to give security and protection to these officers in the exercise of that authority with which they are clothed by the common law, and to relieve them from liability to have their acts * * * revised or set aside to their injury by those who were interested in the effects of the testator or intestate." The power of an administrator to submit to arbitration is said to be based upon the fact that he has power to prosecute or defend suits. Kendall v. Bates,'35 Me. 357; Eaton v. Cole, 10 Me. 137; Weston v. Stuart, 11 Me. 326. The award is binding against him in his fiduciary capacity (Wheatley v. Martin's Adm'r, 6 Leigh, 62), and against the legatees or distributees and creditors of the estate (Strodes v. Patton, 1 Brock. 228, Fed. Cas. No. 13,538). At common law, no civil action could be maintained for the killing of a human being. Wyatt v. Williams, 43 N.H. 102, and authorities cited. "Actio personalis moritur cum persona." Neither the heir nor the executor represents the person of the ancestor or testator, except as to his real and personal estate. Sawyer v. Railroad Co., 58 N.H. 517, 519. This action is founded on the statute, which provides that actions of tort for physical injuries to the person and the causes of such actions shall survive. If the action is brought by the party injured in his lifetime, the prosecution, after his decease, may be assumed by his administrator; or, if not then commenced, may be brought by the...