Deane v. Caldwell

• Decision Date: 03 July 1879
• Citation: 127 Mass. 242
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Deane & another v. George H. Caldwell, administrator

127 Mass. 242

Charles Deane & another v. George H. Caldwell, administrator

Supreme Court of Massachusetts

July 3, 1879

Argued March 15, 1878

Suffolk. Appeal from the decision of commissioners upon the insolvent estate of William Caldwell deceased. Trial without a jury before Endicott, J., who reported for the determination of the full court the following case:

The plaintiffs made a lease by indenture of a shop and factory in Boston to William Caldwell for the term of five years from December 15, 1874, at a yearly rent of $ 4000, payable quarterly. The lessee paid the rent to June 15, 1875, and died September 16, 1875. The defendant was appointed administrator of his estate, and remained in occupation of the premises until July 1, 1876, and the plaintiffs afterwards, in an action against him, recovered judgment in the sum of $ 1650 for his use and occupation from September 16, 1875, to July 1, 1876, and that judgment was satisfied. In July 1876, the administrator delivered the key of the shop to another person, who, after occupying a month or two delivered the key and paid for his occupation at a reduced rent to one of the lessors, and the lessor received the key and subsequently leased the premises at a reduced rent to another person. The judge found that there had been a surrender of the premises, by operation of law, by the giving up and acceptance of the key in August 1876, but reserved the question of the effect of such surrender, together with the other questions in the case.

On February 19, 1876, the estate of the intestate was represented insolvent, and, on February 28, the Probate Court appointed commissioners, to whom, on April 26, the plaintiffs presented these claims: 1st, for the rent due and unpaid at the time of the death of the intestate; 2d, for damages (treating the contract of lease as broken at that time) estimated at the difference between the rent reserved and the value of the lease for the rest of the term; 3d, if this claim for damages was not provable, then for the rent due to the time of the presentation of the claim to the commissioners, or for damages for loss of rent sustained up to the time of such presentation. The hearing before the commissioners was had on June 24, 1876; and the commissioners in their report, filed August 28, 1876, allowed the plaintiffs' claim for the rent to the time of the intestate's death, and disallowed all claims for subsequent rent or damages.

Judgment for the plaintiffs.

R. D. Smith, for the plaintiffs.

J. W. Keith, for the defendant.

Gray C. J. Colt & Soule, JJ., absent.

OPINION

Gray C. J.

Before the day at which rent is covenanted to be paid, it is in no sense a debt; it is neither debitum nor solvendum; for if the lessee is evicted before that day, it never becomes payable. Bordman v. Osborn, 23 Pick. 295. It is not within the provision of a bankrupt act, allowing "uncertain or contingent demands" to be proved against the estate of a bankrupt; because it is not an existing demand the cause of action on which depends upon a contingency, but the very existence of the demand depends upon a contingency. U.S. St. August 19, 1841, § 5. Riggin v. Magwire, 15 Wall. 549. French v. Morse, 2 Gray 111, 115. Savory v. Stocking, 4 Cush. 607. Bosler v. Kuhn, 8 Watts & Serg. 183. Prentiss v. Kingsley, 10 Pa. 120. Stinemets v. Ainslie, 4 Denio 573. South Staffordshire Railway v. Burnside, 5 Exch. 129, 139. The recent bankrupt act of the United States did not alter this rule, except by allowing, in accordance with the modern English bankrupt acts, an apportionment of rent to the day of the adjudication of bankruptcy. U.S. Rev. Sts. §§ 5067-5072. Ex parte Houghton, 1 Low. 554. In re Webb, 6 N.B.R. 302. Treadwell v. Marden, 123 Mass. 390. Robson on Bankruptcy, (3d ed.) 260. A fortiori it could not be proved against the estate of a living insolvent debtor under the insolvent law of this Commonwealth, which (except in certain cases of bottomry and respondentia bonds, policies of insurance, bills of exchange and promissory notes, and sureties) allows no debts to be proved except such as are "absolutely due" at the time of the first publication of notice. Gen. Sts. c. 118, § 25. Stowell v. Richardson, 3 Allen 64. Lothrop v. Reed, 13 Allen 294.

In the case of a living bankrupt or insolvent, any liabilities which could not be proved against his estate are not discharged by his certificate, and may be afterwards enforced against him. But when the estate of a deceased person is insolvent, there is no debtor surviving, and any claims of creditors that do not ripen into debts which may be sued against the executor or administrator, or proved against the estate, before the final distribution of the assets, are wholly lost.

It is in view of this distinction, doubtless, that the statutes relating to the insolvent estates of deceased persons have not limited the right of proof against the estate to debts due at the day of the representation of insolvency, or of an adjudication of bankruptcy or publication of notice at the commencement of the proceedings, or at any other date before the return of the commission; but have provided, in general terms, for the appointment of commissioners "to receive and examine all claims of creditors against the estate, and to return a list of all claims laid before them, with the sum allowed on each claim;" and have enacted that "every creditor of an insolvent estate, who does not present his claim for allowance in the manner herein prescribed, shall be barred from recovering the same, unless further assets of the deceased come to the hands of the executor or administrator after the decree of distribution." Gen. Sts. c. 99, §§ 2, 21. Rev. Sts. c. 68, §§ 2, 20. St. 1784, c. 2.

It is not doubted that debts depending upon no contingency, though not payable until a future day, may be proved before the commissioners. Eaton v. Whitaker, 6 Pick. 465. Haverhill Loan & Fund Association v. Cronin, 4 Allen 141. And it has always been held that any contingent liabilities, arising out of contracts of the deceased, which become absolute debts at any time before being presented to the commissioners, may be allowed, although those which do not become absolute debts until after the return of the commission and the distribution of the estate are necessarily cut off.

In Wilby v. Phinney, 15 Mass. 116, for instance, it was held that, in this Commonwealth, an action of assumpsit, on the ground of an implied promise, would lie to recover a final balance due from one partner to another and therefore that, when a partnership was dissolved by the death of one partner, and his estate was represented insolvent, the surviving partner, having no remedy unless he asserted his claim while the commission remained in force, was obliged to strike a balance, according to the existing state of the accounts, at the time of presenting his claim, which might fairly be considered as in the nature of a suit for the recovery of a final balance, because, as...