Coburn v. Harris

Bartol, C. J.,

delivered the opinion of the Court.

This is an action of assumpsit brought by the appellee to recover a sum due for stone sold and delivered to the appellant’s intestate.

The suit was originally instituted against George and John Coburn, joint administrators; the latter was discharged from the administration by the Orphans’ Court, under the authority conferred by the Act of 1874, ch. 402, and the case proceeded against the appellant, the declaration having been amended.

Two pleas were filed, a demurrer to the first was sustained, and upon the replication to the second plea, issue was joined, and the verdict and judgment being in favor of the plaintiff, the defendant has brought this appeal.

We need not discuss the question upon the demurrer further than to say that the second plea, which follows the words of the Code, correctly presents the question intended to be raised ; while the phraseology of the first is somewhat ambiguous, and therefore not entirely free from objection. But even if the first plea were sufficient in form, no harm was done to the appellant by sustaining the demurrer, inasmuch as the same defence relied on in the first is distinctly presented by the second plea. This defence is based upon section 108, Art. 93 of the Code, which is as follows:

“ If a claim be exhibited against an administrator, which he shall think it his duty to dispute or reject, he may retain in his hands assets proportioned to the amount of the claim, which assets shall be liable to other claims, or to be delivered up or distributed in case the claim be not established; and if on any claims exhibited and disputed as aforesaid, the creditor or claimant shall not, within nine months after such dispute or rejection, com *371 menee a suit for recovery, the creditor shall be forever barred; and the administrator may plead this section in bar, together with the general issue or other plea proper to bring the merits of the cause to trial; and on any dividend to be made nine months after such dispute or rejection and failure to bring suit, the administrator may proceed to pay or distribute, as if he had not knowledge or notice of such claim, or as if it did not exist, but if the claim be put in suit within the nine months, it may be ascertained by verdict or otherwise, and the Court shall proceed as herein directed, regard being had to the rules herein laid down as to the notice to be given by the administrator, and distribution or payment to be made after such notice.”

This is a codification of the Act of 1798, ch. 101, subs ch. 9, sec. 18, which came before the Court of Appeals in Peterson’s Ex'r vs. Ellicott, 9 Md., 52 . This section of the Code was also considered in Zollickoffer, Ex’r vs. Seth, Adm’r, 44 Md., 359 , and in Orndorff, Adm’r vs. Ulz, 48 Md., 299 ; but in neither of those cases was the particular question raised or decided which is now presented.

In 9th Md., Mr. Alexander in his argument contended that this provision was intended only for the protection of the administrator, and that the failure to sue in nine months after the rejection of the claim, did not operate to bar the claim provided there remained assets in the hands of the administrator for the payment of debts. But in Zollickoffer’s Case, 44 Md., this Court, contrasting the 1087/i section, with the 109£/i and 119¿A sections of the same Article, held that these latter were meant only for the protection of the executor or administrator, while by the 108i7i section “ not only is the executor exonerated, but he is required to pay put or distribute the money retained, and the creditor is forever barred all right of recovery against the assets of the estate, no matter in whose hands they are found.”

*372 The question, however, presented by this appeal, is what is meant by exhibiting a claim against an administrator and the disputing or rejection of it. The first prayer of the appellee, which was granted, asserts the proj>osition that “unless the claim after being authenticated by the oath of the plaintiff, or after being passed by the Orphans’ Court, was presented to the administrators for payment by the plaintiff, or by some one by him authorized so to present it, and was disputed or rejected by said administrators, and the plaintiff failed to bring suit to recover on said claim within nine months after such dispute or rejection ” the same is not barred.

We think this prayer properly construes the 108í7¿ sec tion.

Sec. 83 of the same Article provides that no administrator shall discharge any claim against the decedent (otherwise than at his own risk) unless the same be first passed by the Orphans’ Court * * * or unless it be proved according to the rules prescribed. If paid without being so passed or proven, the administrator cannot be allowed for it in his account. Sec. 98. Although the administrator is not bound to pay a claim after it has been proven as directed, or passed, but may dispute the same. Sec. 100. Yet unless so authenticated it is not in a form-entitled to be paid; and therefore when section 108 provides for the consequences which shall follow the rejection of a claim when exhibited against an administrator, it imports that the claim shall be exhibited in such form as that the administrator may be protected in paying it. The rejection or refusal to pay a claim not authenticated, is not such a refusal or rejection as is contemplated by the Code, and imposes no obligation on the creditor to sue -thereon within nine months. It stands as if it never had been exhibited.

We find no error in the appellee’s first prayer. The appellant’s counsel objects to the use of the plural number, and construes it as requiring that the claim shall have *373 been rejected by both administrators, whereas a rejection by one would be sufficient, as the act of- one co-administrator is the act of both, citing Toller on Ex’rs, 359, and Watkins vs. The State, 2 G. & J., 226 .

(Decided 30th March, 1880.)

But even if this criticism be correct it would be no cause for reversal, for the reason that there is no evidence in the cause that the claim was ever exhibited to either administrator in an authentic form, and rejected by him; and this is a sufficient reason why the second prayer of the appellant was properly refused; without referring to the failure of evidence in other respects to support that prayer.

The first and third prayers of the appellant having been granted, and no point being made on the second prayer of the appellee, the judgment will be affirmed.

Judgment affirmed.