Greenlee v. Hays' Adm'r

• Decision Date: 30 September 1808
• Citation: 1 Tenn. 300
• Parties: GREENLEE v. HAYS' ADMINISTRATOR.
• Court: Tennessee Circuit Court

1 Tenn. 300

GREENLEE

v.HAYS' ADMINISTRATOR.

Superior Court of Law and Equity of Tennessee.

September, 1808.

Debt upon a bond given by the intestate, under date of the 21st of May, 1798. Plea, plene administravit, payment and issues.

The plaintiff produced a copy of the inventory returned by the administrator July, 1799, amount $715.56. An order of the County Court, appointing a committee, or commissioners, to make a settlement with the administrator, and report thereon to the next court. Also, a copy of the report containing the settlement, and showing that the administrator had disbursed more than the amount of the inventory.

White, for the plaintiff, objected to this going to the jury. It may be good evidence against them, but never for them, as to creditors who were no parties to the settlement.

Williams, in reply, cited Acts 1723, c. 10; November, 1777, c. 2, sec. 64.

White, in conclusion. 2 Hay. 159, 230.

Per Curiam.

Our law respecting executors and administrators does not of itself form a complete system. It must be considered as alterative of and supplementary to the common law; by the English law, administrators are to settle their accounts with the ordinary, and there it is usual to give notice, though not absolutely necessary to the settlement. By our law, the powers exercised by the ecclesiastical judge in England, respecting the estate of deceased persons so far as they are compatible with our situation, are given to the county courts; they have appointed commissioners to settle with the administrators, and report. This is correct, and agreeably to Godol. Orp. Leg. 150.

The County Court having authority to make this settlement, it must be considered at least prima facie evidence, though notice was not given to creditors individually or otherwise.^a1

The defendants' counsel produced bills of sale dated in August, 1797, by the deceased to his children for four negroes; three of the bills of sale were registered in August, 1797, before contracting this debt; the negroes remained some time in his possession--they were, however, generally reputed in the neighborhood to be the property of the children. Two of the negroes were delivered by the deceased, and two remained in his possession until his decease. These two negroes were conveyed to two of his daughters, who continued to live with him. None of these negroes were taken possession of by the administrator, nor did he make return of them as part of the estate--one of the two last-mentioned negroes died; the daughter, upon her marriage, took the other away.

Robert Hays, one of the children of Charles Hays, the deceased, was produced as a witness to prove the plea of plene administravit. He was objected to on the ground of interest, being entitled to a distributive share; to which it was answered that a residuary legatee might be a witness, and replied upon 2 Dall. 95; 7 Term Rep. 61.

Per Curiam.

The cases are not parallel. In the case of a residuary legatee, the interest is contingent--in the principal case certain, therefore the witness can not be heard.

On the part of the plaintiff, John Gordon was produced as a witness to show that these bills of sale were fraudulent. He proved that at the time of the execution of the bills, he was present; that the deceased then said there were unjust demands against him, which was his reason for making them; the negroes continued in his possession, the children to whom conveyed being then with him.

M'Kinney, for the plaintiff, argued that the conveyances or bills of sale for the negroes were fraudulent. Beside, the evidence of Gordon, and the circumstance of their continuing in possession, made them so. 2 Cun. ed. Bac. 604, 605.

Kennedy, e contra, relied upon the bills of sale having been registered before the debt arose; the reputation of the property in the neighborhood, and at all events the administrator was not liable for any property but that which came to his hands,--these negroes never did. 2 Bac. 604. The bills of sale being obligatory on the deceased, were equally so on his administrator, who could not dispute them.^a1

The negroes were not included in the inventory, they are there mentioned as the property of those to whom they were conveyed.

The settlement with the County Court showed disbursements to the amount of $759.20, in the payment of debts. These payments were allowed and adjusted by the committee of the County Court, and afterwards confirmed by that court. The amount of the inventory is $719.56,--we have paid more than was received from the estate. An executor or administrator is justifiable in paying a simple contract debt, unless he has notice of one by specialty. Godol. 146, p. 617; Bull. N. P. 178.

The debt was contracted after the bills of sale, and therefore can not be considered fraudulent as respects this debt, for it was not in existence.

White argued at great length in conclusion.

Overton, J.

Two points present themselves in this discussion:

First, whether the conveyance of the negroes be fraudulent.

Secondly, a more complete view of the settlement by the County Court.

In relation to the first, I feel much difficulty, arising principally from a comparison of the cases of Bethel v. Stanhope, Croke Eliz. 810, and Hawes v. Leander, Croke Jac. 271. At this moment I feel it difficult to reconcile them. Roberts on Fraud. Conv. 593, 594, has pointed out these two cases, but did not notice any inconsistency in them.

Where personal property is conveyed and delivered, to be fraudulent, it must be with a view to defraud some existing creditor, and, if fraudulent as to him, it will be so as to subsequent creditors. But, upon general principles, it is otherwise where the individual keeps possession after the bill of sale,--that would be a fraud in itself upon subsequent creditors or purchasers, unless the registration of the bill of...