INGLE V. JONES, 76 U. S. 486 (1869)

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U.S. Supreme Court

Ingle v. Jones, 76 U.S. 9 Wall. 486 486 (1869)

Ingle v. Jones

76 U.S. (9 Wall.) 486


1. Although, by the statutes of Maryland which are in force in that part of the District of Columbia which makes the County of Washington, judgment against an administrator for his testator's debts should be entered only for assets as they shall come into his hands, still a judgment in the ordinary form will not prevent the creditors' filing a bill to charge the realty where the record shows that after such judgment, the auditor of the court has, in pursuance of a reference by the court to him, found the personalty insufficient to pay the debt, and that recourse must be had to such realty.

2. The law governing there makes the proceeding against the administrator and the heir, when the latter proceeding is necessary, entirely independent of each other. If it be necessary to resort to the realty to discharge debts, a proceeding against the heir must be instituted, and in that case whatever has been done by the administrator is without effect, as to the property sought to be charged. A judgment against the administrator is not evidence against the heir, and the demand must be proved in all respects as if there had been no prior proceeding to effect its collection.

3. When a will imposes on an executor, who is named, duties foreign to those which come within the scope of an executor's ordinary functions, such powers do not pass to an administrator unless it be clear that it was the intention of the testator to make him a donee of the power.

4. A mere administrator, not the donee of such a power, cannot plead the statute of limitations to defeat a suit brought on a judgment by a creditor seeking to charge the realty with his debt.

5. The three months allowed by the 69th of the Rules in Equity for the

Page 76 U. S. 487

taking of testimony has reference to the taking of testimony by both parties -- defendants as much as complainants. It is for the court below to decide whether further time shall be given or refused, and ordinarily the determination of the question would not be deemed a fit subject for review by this tribunal, though cases may occur of so flagrant a character that it would be its duty to interpose.

6. It refused to interpose, though the court below had been prompt in setting down a case for hearing, the case having been one by a complainant having a pretty plain right, from the enjoyment of which he was kept by a defendant in possession, who had been contesting the case for eighteen years with great pertinacity, and with the interposition of all kinds of technical objections.

7. The necessity of an order for the sale of real property to pay debts being clear, the court may direct an ascertainment of the whole amount of the testator's liabilities when the sale is confirmed. It is not indispensable that such ascertainment have been made before the sale was ordered.

By certain ancient statutes of Maryland in force within the District, [Footnote 1] it is enacted that in suits against an administrator, he need not plead plene administravit nor anything relative to assets, and that he shall not be burdened further than these have come to his hands; but that after verdict against the administrator, the court shall assess the pro rata which he ought to pay, and to do this the court is authorized

"when the real debt or damages are ascertained (meaning by verdict or confession) to refer the matter to an auditor, to ascertain the sum for which judgment shall be given."

In case the judgment shall be for a sum inferior to the real debt, it shall go on and say "that the plaintiff is entitled to such further sum as the court shall hereafter assess on discovery of further assets in the hands of the defendant."

These statutes being in force -- and the 69th of the Equity Rules set forth by this Court for the governance of courts below in equity causes, prescribing that

"Three months and no more, shall be allowed for the taking of testimony after the cause is at issue, unless the court or a judge thereof shall, upon special cause shown by either party, enlarge the

Page 76 U. S. 488


-- Zephaniah Jones, a builder, entered in 1851 into a contract with Miss Ann R. Dermott for building her a large house in Washington, she agreeing to pay him $24,000 for his work; parts of the sum to be paid as the building advanced. The house was so far built as to be ready for delivery in May, 1852, and it was delivered to Miss Dermott accordingly; its yearly rental being subsequently estimated at from $7,000 to $8,000. Before the completion of things on either side, misunderstandings arose, and Miss Dermott refusing to pay the balance claimed by Jones, he sued her to recover it. The suit was earnestly contested; technical objections being raised wherever they could be set up. Jones obtained a verdict and judgment, but it was reversed here on objections of this kind. Being thus sent back, he then obtained a second verdict and judgment, which was reversed on like grounds. Settlement of the claim was thus greatly protracted.

In the progress of the contest, Miss Dermott departed this life, leaving debts; leaving the house which Jones had built and the ground on which it stood (her chief realty), some (not very considerable) personalty, and a will of a peculiar kind.

By this will she appointed eight executors, one of them being a certain John P. Ingle. The executors and their survivors, in the performance of the "powers, commissions, charges, functions, and duties" which she gave them along with "the exclusive care, management, and stewardship of her estate," were to have its entire management and control during an uncertain time named by her. They were to rent the real estate, and out of the rents and the personal estate, not otherwise disposed of, were to pay her funeral expenses, and her other debts, without regard to limitations of time, "if found according to their best judgment really due in conscience;" to pay several legacies, and to pay also an annuity, while their duties were executing, though after the execution accomplished, it was to be a charge on the estate; they were to pay all such debts of her brother, contracted by him in a place and within a time named, as they should,

Page 76 U. S. 489

"according to the best of their judgments and discretions, deem due in conscience, and no other debts or pretended debts of his contracting."

They were authorized to sell certain lots in an old cemetery, and to buy others in a new one, and to build there a vault to receive her remains. The power was given to mortgage her real estate, if found necessary to pay debts. After the debts and legacies were all satisfied, the entire estate was to be delivered over to twenty trustees, named in the will, one Stringfellow being the first named, to whom and their heirs it was devised for a charity described -- a charity, however, which now was confessedly void, and which could not be enforced as against her heirs.

All the persons named as executors declined to act except one of them, John P. Ingle, already named. He, however, after taking letters and defending against Jones's suit, but not wholly settling the estate, died during the progress of the controversy; thus leaving no executor to the will. Miss Dermott had provided in that instrument that if the surviving executor should die while the trusts were yet executory, the execution of her will &c.,

"shall not devolve upon the executor of such deceased executor, but upon such person or persons as the vestries of St. John and Trinity Churches [Footnote 2] may elect to go on and complete this will insofar as the execution thereof is committed to my said executors, and that proper letters of administration with the will might be granted by the court or authority competent for the purpose, to the person or persons so elected."

But the vestries of the two churches named by Miss Dermott did not elect anyone in pursuance of her will to take his place, and the court in Washington competent for that purpose, acting under a statute [Footnote 3] which authorized the appointment of such an administrator, but was silent as to the powers which such a representative of the decedent shall have, appointed one John H. Ingle, administrator de bonis non, with the will annexed.

Against this administrator de bonis non &c., Jones finally,

Page 76 U. S. 490

in 1865, and after fifteen years' prosecution of his suit, obtained a judgment. The record entry of it was

"for $20,136, with interest from April 5, 1852, with costs, to be levied of the goods and chattels which were of the said Ann Dermott at the time of her death, which have come, or at any time hereafter shall come, to the hands of the said John H. Ingle, to be administered, if such goods and chattels be sufficient to discharge said damages and costs and all other just claims against the same; and if not sufficient, then said damages and costs to be levied of said goods and chattels ratably with all other just claims against the same."

The record proceeded:

"And, because it is unknown to the Court here whether all or only such ratable part of said damages and costs ought to be so levied, it is referred to the auditor to inquire thereof, according to the statute in such case made and provided, and report accordingly."

The auditor reported that there were no assets in Ingle's hands which could be applied to payment of the debt. Jones thereupon filed a bill in equity in the court below -- the bill to the decree on which the present appeal was taken -- to subject the testator's real estate to the payment of the judgment. And the complainant alleging that Ingle, being administrator of the unadministered personalty only, had no concern with the realty, the court appointed a receiver, one Wilson, to take charge of it and to receive the rents.

The bill thus now brought, made Ingle administrator &c., and Hoe and several others, heirs-at-law of Miss Dermott, and Stringfellow with other trustees, parties defendant. The former denied the justice of the demand and pleaded the statute of limitations. Hoe and some others filing their answers confessed its validity, did not plead the statute, and agreed to the sale of the realty as prayed for. And against Stringfellow and the trustees the case went by default.

The cause was put at issue on the 6th of March, 1866. The 69th rule in equity, as already stated, allowed the parties

Page 76 U. S. 491

three months thereafter to take their testimony. The complainant began the taking of his on the 14th of that month. Between that time and the 23d, inclusive, he examined nine witnesses, the complainant's counsel, to whom notice had been given, appearing and cross-examining those of them whose testimony was the most important. An adjournment was ordered by the examiner from the 23d of March until the 2d of June. A deposition relating to a formal matter was then taken, and the complainant's counsel announcing that he had closed the examination of witnesses on his part, the examiner on that day (four days yet remaining of the three months) sealed up the depositions and transmitted them to the court; no objection being at this time made by the defendants.

A side issue, made also about this time, must here be referred to. It has been mentioned that the answers of the heirs-at-law admitted the justice of Jones's claim, and assented to the granting of his prayer for satisfaction from the realty. On the 23d of May they filed a petition setting forth that these answers were obtained from them by fraud practiced upon them by an emissary of Jones and asking leave to withdraw those answers and to file answers de novo. The particulars of the case were given by them. Jones answered denying them, but the issue having been one of fact, there is nothing in it worthy of report further than that the particular matter was set down for hearing on the 11th of June and that on the 14th, the court, refusing to allow the withdrawal prayed for, dismissed the petition asking it.

Returning now to the main case. Six days before this dismissal -- that is to say, on the 11th of June, and still, therefore, before the three months for taking testimony had completely expired -- the court set down the motion for publication of the testimony on the 8th of June, 1866, and on the same day set down the cause for hearing at the then term, the petition to take the answers off the file being still not passed on and pending. On the 10th of June, the defendants gave notice that they would take testimony on the 19th of the month, and filed objections against the case's being

Page 76 U. S. 492

heard at the then term, and showing afterwards as cause that no sufficient opportunity had been allowed to them to take rebutting testimony, after the evidence in chief on the part of the complainant was closed on the 2d of June, and because none was allowed the defendants, heirs-at-law, to take evidence in support of the allegations of their petition, filed May 23d, for withdrawal of their answers. The court below, however, heard the case, and on the 3d of July, 1866, finding the amount due to the complainant, and that it was necessary to sell the real estate described in the bill to pay it, ordered the premises to be sold and the proceeds to be held subject to the further order of the court. From this decree it was that Ingle now appealed.

Page 76 U. S. 494

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