Ingle v. Jones
APPEAL from the Supreme Court of the District of Columbia; the case being this:
By certain ancient statutes of Maryland, in force within the District,  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 time'-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 $7000 to $8000. 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, '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  may elect to go on and complete this will in so far 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 and one in pursuance of her will to take his place, and the court in Washington competent for that purpose, acting under a statute  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, 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 5th, 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 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 practised 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 being 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.
Messrs. R. J. and J. L. Brent and S. L. Phillips, for the appellant:
1. By the old statutes of Maryland which regulate the subject, no judgment can be rendered against an administrator until it is judicially ascertained, on an auditor's report or otherwise, that there is, or is not, any assets in hand, and when this fact is ascertained, the judgment is entered and moulded accordingly. The true entry and form of making up of the record, in such a case as this was, is shown in Harris's Entries,  in which old and approved book of precedents, it will be seen that there is no entry even of an interlocutory judgment on a confession of the debt (or by analogy on a verdict establishing it), until the auditor's report is made. There was thus in law no judgment whatever on this verdict.
2. Did the administrator de bonis non with the will annexed, who sets up the illegality of the claim and also the statute of limitations, succeed to the trust estate vested in the executor, these trusts being yet unexecuted when that executor died? No doubt the testatrix contemplated the occurrence of two events, viz., the nomination by the vestries, and its ratification by the Orphans' Court. But she has failed to say what her intention was in case the Orphans' Court appointed a person, upon the failure of the vestries to nominate. Did she mean to let the great trusts of her will fail in this last case? Certainly not. We must therefore construe her will as containing two intents-first, a particular intent that her administrator should be named by the vestries; secondly, a general intent, that her administrator, however appointed, should be the trustee. If so, and both intents cannot be gratified, the rule is to construe the will upon the cy-pres doctrine, and sacrifice the particular intent, which in such case is construed as merely directory and not imperative. If this court takes that view, we are let into both defences. Of course, if our view is right, the appointment of a receiver was improper. [The counsel then went into these points.]
3. The answers of the heirs-at-law of Miss Dermott were obtained by contrivance and fraud, and should have been taken off the files, that they might answer de nove. [The counsel then argued this point.]
4. The court erred in ordering publication, and refusing to allow the defendants to take evidence on the merits. The complainant consumed the three months by his evidence in chief, and then announced it closed, and on the same day had it filed and moved for publication. The defendants in vain excepted, and prayed for an extension of time (under the 69th rule) to rebut the testimony taken; but the court below held that we were in fault for not taking testimony pari passu with the complainant. The action of the commissioner in closing and sealing the depositions, on the 2d of June, cut us out of four days of the three months during which we were entitled to take testimony; and even if we had served a notice de novo to take it, such had been the course of the other side that the time would have been too short for us. We were at any rate clearly entitled to keep the depositions open for four days to examine any witnesses we chose.
Then on the 5th of June, before the three months had expired, the court set down the motion for publication of the testimony on the 8th of June, 1866, and on the same day the cause was set down for hearing by order of the court. The petition to take answers off file was still pending, and the defendants could not take evidence while pleadings were being perfected. If they had gone on to take it under those disputed answers, it would have prejudiced their petition to take them off the file. In addition, the defendants could not know what rebutting evidence to adduce until the complainant closed his case on the 2d of June, 1866.
This particular error of the court below was a great one, for it saps the foundations of justice, by paralyzing all attempts at defence.
5. The decree was erroneous on its face. Without any reference to the anditor to report what other debts than Jones's existed, it decrees the sale of the whole real estate; omitting to adjudicate the amount or insufficiency of the personal estate, so as to subject the realty to the payment of the deficiency for which it was only responsible.
Messrs. Davidge and J. H. Bradley, contra.
Mr. Justice SWAYNE delivered the opinion of the court.
^1 Act of 1786, chapter 80, § i; act of 1798, chapter 101, subchapters 7, 8, §§ vii, viii, ix.
^2 Two Episcopal churches in Washington.
^3 Act of Maryland, 1798, chapter 101, subchapter 5, § 6, &c.
^4 Page 104.