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MCGILL V. ARMOUR, 52 U. S. 142 (1850)

U.S. Supreme Court

McGill v. Armour, 52 U.S. 11 How. 142 142 (1850)

McGill v. Armour

52 U.S. (11 How.) 142




Where a creditor brought an action against an executrix in the Circuit Court of the United States for Louisiana, and the petition only averred that the petitioner was shown to be a creditor by the accounts in the state court which had jurisdiction over the estates of deceased persons, and then proceeded to charge the executrix with a devastavit, and exceptions were taken to the petition as insufficient, these exceptions must be sustained.

The petition should have gone on to allege further proceedings in the state court analogous to a judgment at common law as a foundation of a claim for a judgment against the executrix de bonis propriis, suggesting a devastavit.

The laws of Louisiana provide for compelling the executrix to file a tableau of distribution, which is a necessary and preliminary step towards holding the executrix personally responsible. The petition, not having averred this, was defective, and the exceptions must be sustained.

As the decision turned upon a question of pleading, it is proper to insert the petition, and the exceptions which were taken to it, by way of demurrer.

The petition was as follows.

"To the Honorable the Judges of the Circuit Court of the United States held in and for the District of Louisiana, the petition of Penelope McGill respectfully shows: "

"That she is a resident and citizen of the State of Mississippi."

"That Josephine Hurd Armour is a citizen of the State of Louisiana, resident in New Orleans. "

Page 52 U. S. 143

"That Josephine Hurd Armour is indebted to and became liable to pay to your petitioner the sum of $7,510.66, with eight percent per annum interest thereon, from and after 6 June, 1843, till paid, in the manner following, to-wit:"

"On or about 1 August, 1843, James Armour died indebted to your petitioner in the sum of $7,510.66, with interest, as above stated, the items of which debt are set forth in the papers annexed and marked A and B."

"That before his death James Armour promised in writing to pay eight percent per annum interest on the funds which petitioner left in his hands -- that is, on the sum of $7,510.66, until their payment."

"That at his death, James Armour left a will in which he appointed Josephine H. Armour the executrix of the said will and dispensed with the necessity of requiring her to give security."

"That on 11 September, 1843, she filed her petition in the Probate Court of the Parish of Orleans praying the appointment of executrix of the last will of James Armour, on which said day she was appointed, and took the oath required by law, and on 16 September, 1843, she was fully authorized to do all acts as executrix of the will of James Armour and as such took possession of all the property of said James Armour."

"That James Armour, at the time of his death, owned property in New Orleans which was appraised at $70,058.61, and in the Parish of Jefferson he owned property which was appraised at $800, all of which came into the hands of said Mrs. Josephine H. Armour as the property of James Armour, deceased."

"That she has used for her own benefit all of said property except as herein below stated, and has appropriated no portion thereof to the payment of the debts of James Armour."

"That among the property of the said succession of James Armour were found the following described notes: two notes of John Graham, each for $629.06, due on 1 August, 1842 and 1843, payable to and endorsed by Buchanan, Hagand & Co.; a note of Dougall McCall for $3,803.90, due 7 June, 1841; three notes of C. A. Warfield, for $619.67 each, due two, four, and six months after 3 May, 1841; a note of J. K. Patterson for $550, due on 1 November, 1841; a check of James Pardon, Brother & Co., on the City Bank of New Orleans for $100; another check of the same drawers, on the Commercial Bank of New Orleans for $120; a due bill of William Christie for $250; a draft of Francis D. Newcomb, on Rice Garland, for $75; four promissory notes of Francis D.

Page 52 U. S. 144

Newcomb, all dated 15 December, 1842, each for $954.76, due at six, twelve, eighteen, and twenty-four months after date. All of which several debts were due to James Armour at the time of his death, and have since become worthless and prescribed by means of the negligence of said Mrs. Armour; and all said claims bore interest at the rate of eight percent per annum, from their dates till paid."

"That by means of said negligence, she has made herself liable to the creditors of the said James Armour for the amount of all said claims, $11,760 and interest at ten percent from the several dates above mentioned until payment."

"That she received and applied to her own use the family residence of James Armour, valued at $15,000; she sold two lots on Camp Street, near Felicity Road, worth $600; the property in the Parish of Jefferson worth $800; the slaves Sampson, Betsy and child, Emily, Esther and child, Sarah, and Calvin, worth by appraisement $2,750; also, the household furniture and plate, carriage &c., valued at $1,000, making $20,150; all of which she used for her own benefit, and did not pay to the creditors of James Armour any portion of the proceeds, although all said property belonged to James Armour."

"That the said Mrs. Armour owed said succession of James Armour $411.35, at the time of his death. She collected from the various debtors of the estate of James Armour the various sums which are stated in the annexed inventory to be due by the persons therein named, and not hereinbefore set forth, which said several debts amount to fifty thousand dollars."

"That, by receiving the property enumerated in said inventory, as the executrix of her husband's will, she became bound to use all due diligence in collecting the property of said James Armour; and also became bound to apply all the proceeds to the satisfaction of the debts of James Armour."

"That the said property was more than sufficient to pay all the debts of said James Armour, if the said Mrs. Josephine H. Armour had used due diligence in collecting and in paying over the proceeds of the property of said estate."

"That, on 13 December, 1843, the said Mrs. Josephine H. Armour filed, in the Probate Court of the Parish of Orleans, a provisional account of the affairs of the said succession, with which she filed a statement of all the creditors of said estate, by which it appears that James Armour owed only forty thousand dollars, to pay which Mrs. Armour had the sum of seventy-one thousand dollars."

"That, in the said list of creditors, your petitioner is named and acknowledged to be a creditor of said succession of James Armour, for the sum sued for herein. "

Page 52 U. S. 145

"That, upon opposition made to the said account and list of creditors, it was adjudged that the said estate of Armour owed to your petitioner the said sum of money, as also that the debts of the succession amounted to forty thousand dollars."

"That by means of the neglect and the misapplication of the funds of said succession, Mrs. Josephine Hurd Armour has become liable to pay the said debt to your petitioner, and also to pay damages to the amount of eight thousand dollars, and eight percent per annum interest from 6 June, 1843, till paid."

"The premises considered, petitioner prays that the said Josephine Hurd Armour be cited, and, after due proceedings, that she be condemned to pay your petitioner the sum of $7,510.66, with eight percent per annum interest from 6 June, 1843, and damages as above stated. Petitioner prays for a trial by jury and for general relief in the premises."

"STOCKTON & STEELE, Attorneys for Plaintiff"

In March, 1848, the defendant filed the following exceptions and answer.

"And the said Penelope McGill by her attorneys, comes into court and, pursuant to the rules and practice in this Honorable Court, files now this her exception and answer to said petition."

"She excepts to said petition and prays that the same may be dismissed without further answer, for these reasons:"

"First. The said petition, and the matters and things therein contained, are not good and sufficient in law to charge this defendant and show no cause of action against her."

"Second. The said petition is insufficient for the reason that all parties interested in the further settlement of said accounts therein referred to are not made parties to said petition, and the defendant cannot be called upon by each creditor of the testator to render an account of her actings and doings."

"Third. The said defendant excepts to the jurisdiction of this Honorable Court, sitting as a court of common law, to determine and adjudge the matters involved in said petition, and says that the same are only cognizable in chancery and according to the form of proceedings in equity."

"And if the said exceptions should be overruled and the said defendant be required to make further answer unto said petition, then for answer to the same she states:"

"That she denies generally and specially each and all of the allegations in said petition contained except such as are hereinafter admitted. She admits that she was appointed the

Page 52 U. S. 146

executrix of the last will and testament of her deceased husband, James Armour; that she duly qualified as executrix as aforesaid, and took upon herself the administration of said estate."

"She further states that she has endeavored faithfully and honestly to discharge her duties as executrix, and avers that in all things she has administered the effects of said estate according to law, that she made full, true, and perfect inventory of the property of said succession and all proper diligence in collecting the debts of said succession, disposed of the property thereof under and in obedience to the order of court, made reports of her actings and doings, and presented formal tableaux of distribution, which were duly approved and homologated by the Probate Court of the Parish of Orleans, in which such matters were properly cognizable."

"The said defendant further states that the said succession of James Armour is and was at the death of the testator utterly insolvent, and that she is a creditor of said estate, recognized as such by the proper tribunal, and entitled to be paid before petitioner, and although so recognized for a large amount, the assets are wholly insufficient to discharge the said claim, besides many other ordinary creditors whose claims are equally as meritorious as the petitioner's."

"Wherefore defendant prays for trial by jury, and that judgment be rendered against petitioner, and she will ever pray &c."



In May, 1848, the circuit court, after argument, sustained the exceptions and dismissed the suit at the plaintiff's costs. The plaintiff sued out a writ of error, and brought the case up to this Court.

Page 52 U. S. 151

MR. JUSTICE McLEAN delivered the opinion of the Court.

A suit was commenced by the plaintiff in the circuit court against the defendant, on a claim of debt amounting to the sum of $7,510, with interest, which James Armour, husband of the defendant, in his lifetime owed to the plaintiff. He died having executed a will and made the defendant his executrix. She filed her petition in the Probate Court at New Orleans, and was duly authorized to act as executrix. At the decease of her husband, it is alleged, a large amount of property came into her hands as executrix which she used for her own benefit

Page 52 U. S. 152

and neglected to pay the debts of the estate. And it averred that a misapplication of the funds has made the defendant liable in her individual capacity, and the plaintiff prays that she may be condemned to pay the above sum &c.

The defendant demurs to the petition on the ground that it is not sufficient in law to charge her, for want of parties, and that the matters are only cognizable in chancery. And she answers that she has fully administered, having made a full inventory of the property of said succession, and used all proper diligence to collect the debts, and disposed of the property in obedience to the order of the court, made reports of her acts, and presented a formal tableau of distribution, which was duly approved and homologated by the Probate court. That the estate proved to be insolvent, and that the defendant is a creditor, recognized as such by the proper tribunal, and is entitled to a preference &c.

At the trial, the suit was dismissed, at the plaintiff's costs.

This was a procedure at law under the forms adopted by Louisiana, and the question is whether it is maintainable. The plaintiff demands a judgment de bonis propriis against the defendant, no other step having been taken or notice given before the commencement of the present action. At common law, an executor or administrator is not chargeable on a devastavit until a judgment shall be obtained against him. He is bound to defend himself by legal pleading, and can have no relief in equity. If he suffer judgment by default, it is an admission of assets, and also if he file a plea in bar which he knows to be false. So if he pleads only the general issue and has a verdict against him. If he plead plene administravit, and on this plea assets are found to be in his hands, he is liable only to the amount of such assets. 3 Bac.Abr., Executors, M.

Estates, by the law of Louisiana, are administered under the special orders of the probate court. By the Code of Practice, Art. 984-988, no creditor is permitted to bring suit without first presenting his claim to the administrator. If the claim be admitted by the administrator in writing, it is filed among the acknowledged debts of the succession. If the claim be rejected, the creditor may bring suit. But a judgment gives no priority.

By articles 1167, 1168, and 1169 of the Civil Code, the curator of a vacant succession can pay no debts except privileged ones until three months after the succession is opened, and then under the order of the judge. When the time for payment arrives, he must present his petition to the judge with a statement of the debts due. And if the funds in his hands

Page 52 U. S. 153

shall be insufficient to pay the debts in full, he is required to make a tableau of the distribution and present it to the judge with a prayer that he should be authorized to make the payments accordingly. But if the administrator or curator

"neglect or refuse to file a tableau of the estate and obtain the order of the judge to make payment, he can be compelled to do so on the demand of the interested, or in default thereof render himself responsible in his personal capacity."

Kenner v. Duncan's Executors, 3 Martin N.S. 570.

This last procedure is as indispensable under the Louisiana law to authorize a proceeding against the executor or administrator to make him personally responsible, as an action and judgment are necessary at common law to charge him with a devastavit. And it does not appear from the petition in the case before us that any order of the judge was obtained as required, or that any proceedings were had to compel the defendant to exhibit a tableau of distribution by which it would appear whether the executrix had assets in her hands to pay the whole or any part of the debt of the plaintiff. This action was commenced at law, and the fact is alleged that a large amount of assets came into the possession of the defendant which have been misapplied, on which ground a personal liability is sought to be enforced against her. This the law does not authorize. An executor or administrator, by the laws of Louisiana, is considered in this respect as a syndic of an insolvent estate. In 6 Martin N.S. 126, the court said, when a syndic has been legally appointed and has taken charge of the estate entrusted to him, no individual creditor can sue him for a debt or interfere with his administration. He may be ruled to produce his bank book, file a tableau of distribution &c., but he should not be suffered to be harassed by suits brought by individual creditors who allege or fear mismanagement on his part.

The judgment of the circuit court is

Affirmed with costs.


This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana and was argued by counsel. On consideration whereof it is now here ordered and adjudged by this Court that the judgment of the said circuit court in this case be and the same is hereby affirmed with costs.

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