Daniel Green Administratrix v. Fletcher Creighton, In His Own Right, and As Executor of Jonathan Caleb Deceased

• Decision Date: 01 December 1859
• Citation: 64 U.S. 90,16 L.Ed. 419,23 How. 90
• Parties: DANIEL GREEN'S ADMINISTRATRIX v. FLETCHER CREIGHTON, IN HIS OWN RIGHT, AND AS EXECUTOR OF JONATHAN McCALEB DECEASED
• Court: U.S. Supreme Court

64 U.S. 90

23 How. 90

16 L.Ed. 419

DANIEL GREEN'S ADMINISTRATRIX v. FLETCHER CREIGHTON, IN HIS OWN RIGHT, AND AS EXECUTOR

OF JONATHAN McCALEB DECEASED.

December Term, 1859

THIS was an appeal from the Circuit Court of the United States for the southern district of Mississippi.

The bill was originally filed by Daniel Green, a citizen of the State of Arkansas, against Fletcher Creighton and Jonathan McCaleb. Whilst the proceedings were pending, McCaleb died, and a bill of revivor was filed against Fletcher Creighton, his executor.

In 1836, Wheeler C. Green died in Mississippi intestate and without issue. His personal representatives were Daniel Green, Reuben Green, and Sally Smith. In 1837, the latter two conveyed their interest in the estate to Daniel Green, who thus became the sole claimant.

In October, 1836, letters of administration were granted to Albert Tunstall, who gave as sureties upon his bond, Amos Whiting, George W. Summers, and Eli West.

In 1837, Whiting died, and letters of administration upon his estate were granted to his widow, Maria L. Whiting, and George Lake. In 1839, Maria intermarried with J. M. Rhodes, who thereupon became administrator of said Whiting in right of his wife.

In March, 1839, Green instituted proceedings against Tunstall, as administrator, in the Probate Court of Claiborne county, and at June term, 1841, obtained a decree for $61,194.76; and it was further ordered, that the administration bond should be put in suit in any court having cognizance of the matter.

So far, Green's remedy was against Tunstall personally, and those who represented Whiting, the surety upon his bond.

In October, 1841, Lake and Rhodes and wife were removed from the administration by the Probate Court; and Fletcher Creighton was appointed administrator de bonis non of Whiting, who gave bond in the penalty of $100,000, with Jonathan McCaleb as surety.

Green had therefore to look to Tunstall personally, and Creighton as the administrator of Whiting, and McCaleb as the surety of Creighton. The bill alleged that a large amount of assets of the estate of Whiting came into the hands of Creighton.

In August, 1843, Tunstall died insolvent, without having paid any part of the money which he had been decreed to pay by the Probate Court.

The bill stated that a large amount of the assets in the hands of Creighton were at interest with McCaleb, his surety.

In 1844, Creighton, on citation for that purpose, made another and further administration bond, with Jonathan McCaleb as his surety, in the penalty of one hundred thousand dollars.

In 1848, Green filed his bill against Creighton and McCaleb. The prayer of the bill was, that the claim of the complainant against the estate of Amos Whiting, as surety of Tunstall, who administered on the estate of Wheeler C. Green, may be established by decree of this court, and against said Creighton, in his capacity as administrator de bonis non of said estate, to the amount of the liability of said Amos, for and on account of said Albert Tunstall, as administrator of W. C. Green. Also, that said Creighton and Jonathan McCaleb may admit assets in the possession of Creighton sufficient to pay the claim of complainant, or set forth in his answer a full account of all the assets, &c., of the estate of said Amos Whiting, which have come to the hands or knowledge of said Creighton, or of any other person within his knowledge.

That said Creighton may be decreed to pay to complainant such sums of money as may be decreed against the estate of Amos Whiting, or against said Creighton in his character as administrator de bonis non, if sufficient assets shall be found in his hands for that purpose; and if not, then for such amount as said Creighton shall be found liable for; and in case said Creighton shall not be able to pay such sum or sums on account of said insolvency, then that said Jonathan McCaleb may be decreed, as his surety, to pay it for him. The bill concludes with the general prayer for relief.

The defendants demurred to this bill, but the demurrer was overruled, and they were required to answer. Answers were accordingly put in, which entered into the merits of the case; but as the opinion of this court did not touch upon that branch of the subject, it is unnecessary to do so in this report.

One part of the answer must be inserted, because it raises one of the questions decided by this court, viz: the pendency of the proceedings in insolvency.

Further answering, these defendants aver that the estate of the said Amos Whiting was reported to be insolvent to the March term, A. D. 1841, of the Probate Court of Claiborne county, and was then so declared by said court, and commissioners appointed to receive and audit claims against the said estate; and that, by reason of various delays in relation thereto, the same still remains open for the proof of claims; and these defendants insist that the complainant is bound to make out his claim in the Probate Court in the manner required by the laws of the State of Mississippi, and has no right to maintain this suit to establish said claim against the estate of Whiting; and they pray that they may be allowed to rely on the same as a plea in bar to said bill; and they further insist that, in any event, the complainants can only be entitled to such a dividend upon his claim as the estate of said Whiting may pay.

This cause having come on to be heard at the May term, 1855, of said court, and the same having been argued and submitted, on the nineteenth day of May, 1855, on final hearing on bill, bill of revivor, answers to original bill and bill of revivor, exhibits, and proofs, and the same having been taken under advisement by his honor S. J. Gholson, the judge presiding on said final hearing, and the court, being now sufficiently advised in the premises, doth see fit to order, adjudge, and decree, and it is accordingly so ordered, adjudged, and decreed, that said bill and bill of revivor be and the same is hereby dismissed, and that the complainant pay the costs to be taxed, ordered, adjudged, and decreed, on this, the twenty-sixth day of January, 1856.

The complainant appealed to this court, his administratrix, Eveline C. Green, having become the party on the record.

It was submitted on printed arguments by Mr. Freeman for the appellant, and Mr. Yerger and Mr. Wharton for the appellee. Only those parts of the arguments will be noticed which relate to the jurisdiction of the courts of the United States in the present aspect of the case.

The counsel for the appellant stated the case with more particularity than the above summary, and then continued:

Tunstall died insolvent; the money could not be made out of him. Amos Whiting, his surety, had died in 1837, and the only way to establish his liability, as surety for Tunstall, to pay the amount of Tunstall's defalcation to the estate of Green, was to proceed against the administrator of Whiting. But it is said that Whiting's administrator is not liable in equity to account until judgment had been first obtained against him at law. To this I reply, that it was the duty of Whiting, as surety of Tunstall, to see that he administered the estate of Green according to law. He neglected this duty; the Court of Probate had full jurisdiction to ascertain and decree the amount of Tunstall's indebtedness to the estate of W. C. Green, as administrator of the same; this decree was had in accordance with law, as shown by the pleadings and proofs, and the amount of this decree could have been forced out of Tunstall by attachment and imprisonment, if he had been possessed of the means to pay it. The decree of the Probate Court was therefore a lawful and final assessment of the damages against Whiting's principal in the administration bond, by the only tribunal in the State of Mississippi having jurisdiction of that subject, and must therefore be regarded as conclusive evidence of the amount of Whiting's liability for Tunstall, and with which his estate is chargeable.

1 Phillips's Ev., 246.

7 Howard's U. S. Rep., 220.

2 Lomax, 458, 459.

2 J. J. Marshall, 195.

But if this were not so, the answers of defendants admit that Tunstall inventoried the estate of W. C. Green at upwards of $20,000, no portion of which was ever accounted for in the Probate Court. The inventory at eight per cent. would now amount to $52,000, and, in any event, he would be liable for this amount, or the increase of the sixteen slaves and the value of the bricks made on the brick yard of the estate of Green. There is no other claim established against the estate of W. C. Green. If, then, the amount of the damages have been so decreed as to be binding on Tunstall, why is not the same conclusive as to the amount of damages against his surety? Because, say they, the administration bond affords a remedy at law. If true, that does not reach the question. Bonds of administrators are the bonds of trustees in equity, and the surety is liable for the amount, in whatever tribunal the principal is liable. The jurisdiction of this court over executors and administrators is not affected by the Constitution and laws of Mississippi—its jurisdiction is not derived therefrom nor limited thereby, but only by the Constitution and laws of the United States; and these confer upon this court the same jurisdiction over administrators as that of the chancery courts of England.

9 Peters, 632, 658.

3 Wheat., 212, 4 do., 108.

5 Mason, 105.

3 Mason, 165.

3 Leigh, 407.

2 Blackford, 377.

1 Har. and J., 232.

Mumf., 368; 5 Rand, 319.

Stewart and Porter, 133; 1 Sto. Eq. Ju., 515, secs. 542, 543, 544, 545, 546, 547, 548, and 552.

Jeremy's Eq. Ju., 537, 538.

4 Johns. Ch. Rep., 619.

3 Johns. Ch. Rep., 56, 190.

Taylor and Benham, 5 How. U. S., 233.

Rule 51 of this Court.

From these authorities, it is evident that this court has full jurisdiction over the subject matter of the bill, the objects of which are to obtain a discovery of...