Novr. 1760. Monday.
Dana says the Administrator ought not to regard the Disgrace or Trouble or Expence of a Commission of Insolvency, but if it is in the least degree suspicious, that the Estate will not prove sufficient, he must represent it so, at his first Appointment i.e. every Day, that he takes to enquire into the Value of the Estate, and the Number of Debts, is at the Risque of the Creditors, and if any one Creditor brings his Action he must maintain it, at the Expence of the others. For says he, as no Time is limitted an Administrator may wait a whole Year, before he represents the Estate insolvent, and live upon the Estate all that time, to the Injury of the Creditors. Nay he may neglect it two Years, or 10 Years, till he has wasted, spent, or alienated the whole Estate.
I say, it is reasonable that a Time should be allowed the Administrator to enquire, to make a Computation of the Effects, and to enquire into the No. and Quantity of the Debts, that he may be able to judge, whether the Estate is insolvent or not. For a Commission of Insolvency is an Evil, always to be avoided, if Possible. It is always considered as a Disgrace to a family. It is always a great Expence to the Estate. It always provokes the Curses of the Creditors, and puts them to the Trouble in attending the Commissioners to prove their Debts. And it is not only reasonable, that a Time of Enquiry should be allowed, but it is Law. And the Executor or Administrator appointed to any Insolvent Estate, before Payment to any be made, except as aforesaid, shall represent the Condition and Circumstances thereof unto the Judge of Probate. Here is plainly a time allowed him, and there is no Limitation of that time. It is only said the Representation must be made before any Payment is made. And here is an Exception, which clearly gives the Administrator, some time; the Exception is of Debts due to the Crown, of sickness and funeral Charges. These the Administrator, after his Appointment may pay, before he is obliged to represent it insolvent, and he could not pay these any more than any other Debts unless some time was allowed him.
Mr. Danas Objections are in my humble opinion of little Weight. He says, that if the Administrator is not obliged to represent immediately, he may delay it, till she and her family have consumed, or by fraud conveyed away the Estate. But your Honours know that Apprisers are appointed, always directly after the Administrator is appointed, who are to make an Inventory and then the Administrator charges herself with all the Articles in the Inventory, and gives Bonds to be accountable for them at the apprized Value, at the Years End. So that if the Estate is wasted the Administrators Bond may be put in suit. Besides, admitting here is a Defect in the Law, in this Respect, Admitting a new Law is expedient, to limit the Time of [representation], such a Law has no Existence, nor can Mr. Dana avail himself of a Law that has no Being, however expedient it may be, especially when the Representation is made within a reasonable Time, as this was. The Representation was made in 9 months, which was a short space of Time considering the Circumstances of this affair. Brackett was struck out of Life suddenly, left a very distressed family, and a very perplexed and embarrassed Estate, so that it was impossible for the Widow to recover from her surprize, and make any Inquiry so as to satisfy herself whether the Estate was sufficient or not, sooner than she did. And I presume the Reason why the Law has not confined the Administrator to such Estates to narrow limits, is, because Persons, that die so much in Debt, commonly leave Widows and Children behind them, who have been used to decent and reputable living, and will therefore, if some reasonable time is not allowed them to keep together, recover their surprize and look about them, will be driven to absolute Despair. And to this Purpose and that the Estate may not be burdened with Costs, the Law has provided, that no Proscess shall be allowed, while any such Estate is depending as aforesaid, which Words extend as well to the Time, the Estate is depending under the Examination and Enquiry of the Administrator as to that between the Representation of Insolvency and the settling of the Average. And it is quite reasonable that this Action in Particular, should be barred, because it was entered, out of the meer Humour and Obstinacy of the Plantiff. Tho it was commenced before the Representation it was entered afterwards, whereas if he had been a reasonable Man, instead of entering and driving this Action, as he has done, he should have dropd it without Entry.