Rawlings v. Adams

Eccleston, J., delivered the opinion of this court. When an executor relies upon a plea oí plena administravit to defeat the suit of a creditor, to render the plea available by showing that he has paid over the assets to legatees, it must appear that he has given the notice required by the act of 1798, ch. 101, sub-ch. S, sec. 13. This section provides, that “no executor or administrator who shall, after the lapse of one year from the date of his letters, have paid away assets to the discharge of just claims, shall be answerable for any claim of which he had no notice or knowledge; provided, that at least six months before he shall make distribution, he shall have caused to be inserted in such and so many newspapers as the orphans court may direct, an advertisement,” in effect, according to the form given in the section. See also the act of 1823, ch. 131, sec. 2.

The defendant offered in evidence the order of the orphans court of Howard District, directing him to advertise in the Howard Gazette; which order he offered to read from the record of proceedings of that court, as of its session on Tuesday, the 5th day of February 1850, all of which proceedings, inclusive of that order, are inserted in this record. The entry in reference to the order is: “On application of Andrew Jackson Adams, executor of William Adams, late of Howard District, deceased: It is ordered, that he give the notice required by law for creditors to exhibit their claims against the said deceased, and that the same be published once in each week, for the space of six successive weeks, in the Howard Gazette, printed in Ellicotts Mills.” ⁴⁵ After admitting the orphano court was not. in session on the 25(h of January 1850, the defendant offered to read in evidence to the jury his notice to creditors, dated on that day, and published in the Howard Gazette for eight successive weeks, commencing on the 2Glh of January 1850. At the time of this offer it was accompanied with proof to show, that when the notice was advertised, the Howard Gazette was the only newspaper published at Ellicotts Mills. The defendant also declared, that he proposed to give evidence for the purpose of showing that before the institution of this suit, or of any notice to him of the plaintiff’s claim, he had paid away all the assets of the estate in discharge of debts and legacies.

Bat the plaintiff objected to the evidence offered for the purpose stated, and especially to the proceedings of tire orphans court directing the advertisement in the Howard Gazette and to the notice published. The court, however, overruled the objection and allowed tho evidence so offered to bo given for the purpose stated. And this decision constitutes the first exception. In such a case, if the plea of plene administravit can avail the defendant, the due publication of notice to creditors, under the order of the orphans court, is necessary to be established by proof, which, in the first instance, is addressed to the court, and if they are satisfied that the rules of law have been complied with, the notice ¡lien goes before the jury.

If, however, in the preliminary examination, the court entertain doubts in reference to questions connected with the validity of the notice, the court may submit the matter to the jury, with an instruction, that whether they are to regard the notice as evidence before them, must depend upon whether they do or do not find tiie disputed point in favor of the validity of the notice. 1 Md. Rep., 123 , and 5 Ibid., 418. When, as in this case, the court permit the order of the orphans court and the publication to go to the jury, if exception is taken, the appellate court must decide whether the preliminary proof sanctioned the act. And hero wc think it did not. Tiie notice is dated tho 25th and was advertised for the first time on the 26th of January 1850.

The orphans court was ⁴⁶ not in session the day on which (he order bears date, and it appears as part of (he proceedings of that court on the 5th of February, according to the record of the minutes or proceedings. With such proof we cannot say, that on the 26th of January, when the notice was first inserted, it was given under the order of the orphans court. Their order, according to their record, was passed on the 5th of February; and the notice is clearly defective, because it warned the creditors to exhibit their claims on the 1st day of August following, which was less than six months after the order of the court. And under this view, the court below were wrong in overruling the objection of the plaintiff and permitting the proof to go to the jury.

Having thus disposed of the first exception, there is no necessity for expressing any opinion in regard to the question presented by the second bill of exceptions, nor in reference to the two prayers of the plaintiff contained in the third, as they were submitted under the supposition or assumption, that the notice to the creditors was regularly in evidence. At the instance of the defendant the court granted an in? struction: “That if the jury shall find from the evidence that the land devised by the last will and testament of William Adams unto his grandson, Benjamin Rawlings, son of James Rawlings, and his, the testator’s, daughter Elizabeth, and therein described as all that tract or parcel of land lying and being in Montgomery county, State of Maryland, known as Bond’s Tanyard Farm, on which James Rawlings now resides, together with the tanyard and all the improvements thereon, is the same land which is described in the supposed obligation on which the plaintiff has declared; and that the said Elizabeth died in the lifetime of the said William Adams, and that the said Benjamin Rawlings, the devisee, is the only child and heir at law of the said Elizabeth Rawlings, then the plaintiff will not be entitled to recover any damages for the breach of the condition of the said supposed writing obligatory alleged in the declaration, even although the jury shall find that the said instrument declared on was the deed of the said William Adams, deceased, and all other facts offered in evidence by the plaintiff.” ⁴⁷ According' to the doctrine recognised in Dorsey vs. Dashiell, 1 Md. Rep., 207, 208 , as settled by the cases there referred to, this prayer does not present any question for decision upon the pleadings. The position it assumes is, that although the jury should find the bond sued upon was executed by William Adams, and they should also find all other facts offered in evidence by the plaintiff, still he was not entitled to recover any damages, provided they should find the land devised by William Adams to his grandson, Benjamin Rawlings, the son of his daughter, Elizabeth Rawlings, to be the same land which is described in the bond, and that the said Elizabeth Rawlings is the obligee in the bond, and died in the lifetime of William Adams, leaving Benjamin Rawlings, her only child and heir at law. When the prayer is viewed in connection with the proof in the cause, it necessarily asserts the proposition, that, even if the condition of the bond was broken in the lifetime of Mrs. Raw-lings, the surviving husband could not recover any damages for such breach, but the right of action passed to the heir at law of the wife.

No case has been adduced in which the right of the surviving husband, as such, was under consideration in regard to covenants relating to land, but in the cases referred to, where breaches had occurred whilst the covenantees were living and the suits instituted after they had died,the inquiry has been, whether the right of action belonged to the personal representatives or descended to the heirs at law? In the case of Lucy vs. Levington, 2 Lev., 26, and 1 Vent., 175, where the covenant was for quiet enjoyment, and the covenantee, himself, was ejected, the court held the executor to be the proper party to take advantage of the covenant. The decision in Lewes vs. Ridge, Cro. Eliz., 863, is very similar in principle.

But in Kingdon vs. Nottle, I Maule & Selw., 355, the executrix sued for a breach of the covenant for seizin, and upon demurrer to the nar, the demurrer was ruled good, because no other damage had been alleged than such as arose from a breach of the defendant’s covenant that he had a good title, the nar containing no allegation of special damage to the estate of the testator in his lifetime. Upon a suit by the same ⁴⁸ plaintiff as devisee, reported in 4 Maule Selw., 53, it was argued for the defendant, upon demurrer, that inasmuch as the covenant for seizin was broken as soon as made, no right of action could pass to the devisee; but the court held, that it was a continuing breach so long as the defendant had not a good title, and notwithstanding there might have been a technical breach during the life of the testator, yet t.he substantial breach occurred after his decease, which conferred upon the devisee the right to sue, she being the party materially injured. In King vs. Jones, 5 Taunt., 418, under a covenant for further assurance on request, the purchaser requested that a fine might be levied, which was not done. The ancestor was not evicted, but after his decease the heir was.

Tile court held, that the heir could maintain the suit. After citing Fitzherbert, N. B., Writ of Covenant, p. 341, C, and the case of Sir Anthony Cooke, Dyer, 337, also reported in Anderson, 53, Justice Heath, in delivering the opinion of the court, refers to Kingdon vs. Nottle, in 1 Maule & Selw., 355, and says: “The court there follow the doctrine of Lucy vs. Levington, and they advert to the circumstance which differs that case from this, that there the ultimate damage was sustained in the time of the ancestor, and therefore the land did not descend to the heir.” From this it would appear, the English judges were not disposed to overrule the decision in Lucy vs. Levington. And if the case of Kingdon vs. Nottle, in principle, should be considered in conflict with it, an inclination to sustain the doctrine of the former decision has been manifested in Raymond vs. Fitch, 2 Crompt., Mees. & Ros., 596, and Ricketts vs. Weaver, 12 Mees. & Wels., 718. Speaking of Kingdon vs. Nottle, Chancellor Kent does not assent to the correctness of the idea, that a covenant of seizin runs with the land and the assignee may sue, because want of seizin is a continuous breach.

He says,- “ The reason assigned for this last decision is too refined to be sound. The breach is single, entire and perfect in the first instance.” 4 Kent’s Com., 472, marg’l p., (7th Ed.) See also Rawle on Cov., 284, 285, 289, and the cases referred to in note 4 on page 489. ⁴⁹ In 1 Parsons on Contracts, 109, we find it stated, that in covenants relating to the freehold, where the covenant is collateral or in gross, and the breach occurs either before or after the death of the covenantee, the personal representative must sue, and not the heir. But, “for the breach of a covenant which runs with the land, the heir must sue, if the breach occur after the covenantee’s death, the personal representative if it occur before.” This author then says, “the doctrine of a continuing breach, for which the heir or assignee may recover, if the ultimate and substantial damage is suffered by him, was established in England, by the case of Kingdon vs. Nottle, but it has not been adopted in this country.” The plaintiff insists, that his right to recover is sustained by the later English decisions, but if not by them, it certainly is by the American authorities. And not only does he claim a right to some