1760. Octr. 17th.
What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think [it] is certain that they are not. In many Cases it is well known, before a Mans Breath is gone, that he owes more than he is worth, and in such Cases the Administrator would do well to represent the Insolvency, at his first Appointment, but there are many Cases, when it is impossible for the Administrator to know whether his Intestate is solvent or insolvent, the Quantity of his Lands and goods may be unknown, and the Number and Quantity of his Debts is always unknown so that no Computation can possibly be made, and in these Cases, it is certainly reasonable and it is Law, that the Administrator should have some time to examine and calculate before he makes a Representation, for if the Estate is sufficient, it would be folly to draw upon his Intestate and himself and family the Disgrace of Insolvency, and the Curses of the Creditors needlessly, and it would be a Pitty to put the Estate to the Expence of the Commissioners, and the Creditors to the Trouble of making out their Claims before them. In all Cases therefore where it is doubtful whether the Estate is sufficient or insufficient, the Administrator ought to have time to inform himself, and in the mean time, all the Creditors must be debared from suits, or if they will bring them they must do it at their Peril, i.e. if the Estate afterwards proves insolvent, their Actions must be bared and they must pay Costs. Whether some Limitation of the time, is expedient or not, it is not our Business to inquire, if the Laws are imperfect in this respect it is the Business of the Legislature to perfect it, but Mr. Dana cannot avail him self of a Law that has no being.
Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People [must?] be restrained from rushing on such Estates, and by stifling all the sentiments of Humanity, bringing Destruction on the fatherless and Widows.
The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.
The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.