Nettleton v. Dixon

Blackford, J.

This was a petition filed, by Nettleton, administrator de bonis non of the estate of John Dixon, jun., deceased. The petition states that not more than 100 dollars can be obtained from the personal estate. The statement in the petition as to the debts against the estate is substantially as follows :

*447 The estate is indebted to James and Carter, assignees of a judgment rendered against it in favor of M. Dixon in the Posey Circuit Court, on the 12th of September, 1843, for.........$285 02

Interest on same to 12th July, 1848,.......... 82 65

To E. R. James, on account,...... .......... 24 68 Barton and Black's claim, • • ............... • • 90 54

482 89

Deduct said......................... ...... 100 00

Deficit,................................... $382 89

The petition states that the intestate died seized of certain real estate (which is described), leaving John Dixon, the 3d, his only heir at law.

Prayer that said heir show cause why the said real estate should not be sold to pay the debts.

There are three pleas:

1. That sufficient goods to pay the debts came to the hands of W. Hancock, administrator of the estate, which remain unadministered;

2. That sufficient goods to pay said debts came to the hands of E. Hancock, administrator de bonis non, which are unadministered;

3. That as to the accounts of James, and Barton and Black, the land ought not to be sold, because those accounts accrued more than six years before the filing of the petition.

Replication to the first plea: Sufficient goods to pay the debts were received by the administrator, W. Hancock, who died before administering any part thereof. The said goods passed to the hands of E. Hancock, administrator de bonis non, who fully administered the same except 806 dollars, which he wasted. The said E. Hancock and his surety afterwards died insolvent. The claims due the estate of said John Dixon, jun., will not yield more than 100 dollars.

Replication to the second plea: Sufficient goods to pay the debts were received by said E. Hancock, ad *448 ministrator as aforesaid, which, goods he fully administered 806 dollars which he wasted. The said E. Hancocjc an(j surety afterwards died insolvent. The whole means of said John Dixon, jun.’s, estate will not exceed 100 dollars.

A. P. Honey, for the plaintiff. J. Pitcher, for the defendant.

The third plea and the replications to the first and second pleas were demurred to generally. The demurrers were all sustained, and final judgment was rendered for the defendant.

This judgment must be reversed. Either the creditors or heir must lose in consequence of the misconduct and insolvency of E. Hancock and the insolvency of his surety. We think the loss should fall on the heir; and that the replications are good.

Supposing the statute of limitations may be pleaded in these cases, still the third plea is insufficient. The circumstance that the amounts named in that plea had accrued more than six years before ■thefiling of the petition, does not show any laches on the part of the creditor’s. They, for aught shown by the plea, may have previously, and in proper time, taken the legal steps for the establishment of their demands. The plea not showing the creditors to be barred, cannot be valid.

Per Curiam.

The judgment is reversed at the costs of the defendant in error. Cause remanded with instructions to the Probate Court to overrule the demurrers to the replications to the first and second pleas. Costs here.