
    Miner Spicer, for the use of Frederick A. Nash, vs. John Giselman and others.
    It is error to sustain a general demurrer to an entire declaration, containing one good count. ‘
    A joint action, under the 43d section of the act of 1831, “ defining the duties of executors and administrators," (29 Ohio Laws, 229,) cannot be sustained against several heirs or devisees, where there is no joint contract, either express or implied.
    This is a Writ or Error directed to the Court of Common Pleas of Stark County.
    The original action was in assumpsit. The declaration contained three counts. The first count averred, that on the 29th day of December, 1835, Frederick Giselman, deceased, executed to the plaintiff his promissory note for $46, payable January 1, 1839, with interest; that said Giselman, on the first of September, 1839, died, without having paid the note; that on the 9th of September, 1839, administration upon his estate was granted to John Giselman, one of the defendants, by the Court of Common Pleas of Stark County; that on the 6th of September, 1842, said John Giselman filed his final account in the office of the clerk of said court; that at the April term thereof, 1843, he, in due form of law, settled with said court, when there was found in his hands, as administrator, the sum of $469.51, which he was ordered to distribute according to law. It further averred, that after the granting of letters of administration, and before the filing of said final account, the said note was not presented to the said administrator for allowance and payment, and, therefore, was not paid, nor any part thereof; that more than five years had elapsed since the death of the intestate; that the defendants were the heir's at law and distributees of the intestate, and having received assets of the estate of said Frederick, had, by force of the statute in such case made and provided, become liable to pay the plaintiff the amount of money in the note specified, according to the tenor and effect thereof, and being so liable, promised, &c.
    In Bank.
    Dec. Term, 1846.
    The second count was the same in substance as the first, and the third was the usual common count for money had and received, &c.
    
    The defendant demurred to the whole declaration, and the Court of Common Pleas sustained the demurrer and gave judgment for the defendants; to reverse which judgment, this writ of error was sued out.
    
      Hand Nash, and Z. Snow, for Plaintiff in Error.
    
      Belden &f Schaefer, for Defendants.
   Birchard, J.

This suit was instituted under the 43d section of the act of 1831, (3 Chase’s Stat. 1784,) and the question is, can a joint action be sustained against all of the defendants ? It is a general rule, that where there is no joint liability, there can be no joint action.

At common law, this action could not be prosecuted with effect. If it can be done under the statute, it must be because the statute will bear no other construction; for it is manifest that to make one of several heirs liable to an amount equal to an that had descended from his ancestor to a number óf heirs, simply because he had received a sniaH'portion of that anees-' tor’s estate, would be unjust. The proposition is one at which-the mind instinctively revolts. ' _ - .

In a case where a prudent child, after the, settlement of the, estate, takes asmall legacy, say of one hdndred .dollars, and the bulk of the estate is distributed to other- legatees, to a large-amount, who squander it, it would be.hard indeed if a-creditor, who has slept on his right for five years, could afterwards come into-Court with- a, debt sufficient to -sweép.'the-whole estate of. the decedent, and-make .the-prudent legatee’‘responsible for moneys which have bee'n-squandered by the'improvident, and over which he had no control, A-majority of .the Court held, that the Legislature never Intended stich a result;, and,-if. it were necessary, would, unhesitatingly declare that; .if they did intend it, they.,had-not- the capacity of Accomplishing such intention. . The .constitution of, the .State,=as well as- principles-of' natural justice, have interposed insurmountable obstacles.,

These several'; defendants, each in'his- own right, and in severalty, as- heir,'-took whateverwas paid to 'them' by tli'e ;administrador, on the settlement of their ancestor’s estate. Haying so taken,, they canñót be subjected to respond to-any-.creditor of the.’deceased ancestor,, in any form'of a’ction, to an amount beyond what each received.. The 43d section of the statute, by implication, makes that the. extent of the- liability.. But if. this form of action can be resorted to; and a' joint action -can be.máintained.against all the heirs of an estate, or all'the legatees of a- testator; a-joint judgment must bind’all, and each must become-subject to, the' entire payment... T hesitate not-to sav, that the doctrine which will produce'-such a. result is. so monstrous, that it is impossible tó suppose that it lurks' among the enactments of the statute.

Tt is. claimed that it is to be- found in these'words:" “But ■ Such heirs -or. devisees'shall remain liable to the full extent’of' c the assets, by .them received from the estafe of their ancestor-. 1 or devisor, for the payment of all claims.against.the'estate of--. £ such ancestor or devisor; and any writ which could .be brought £ and sustained against such ancestor or devisor, were he alive, ° . / '£ may be brought and sustained against such heirs and devisees, after, the executor or administrator of the ancestor or devisor shall' have made final settlement with the Court, until the asaseis so received by such heirs or devise'es shall be exhausted.”

The first and all important rule to be regarded in construing", a statute, is to have respect to its spirit rather than its letter. Manifestly the framer's of this section ,did not contemplate a violation of the plain rules-of natural justice.' They did not design to give to creditors the right to subject an heir, in any case, to an amount beyond the value ,of the (assets which that heir had received.. , The intent must be borne in mind in giving a construction to’their language; and if, literally ta^en that intent will be defeated, the words of the section must.be departed from., --We have before seen that a joint liability can. not arise from a separate receipt of property, and that a joint action cannot' be permitted when there1 is no joint liability; without subjecting the solvent to the payment of the debts of the improvidént, and that this, cannot be consistently with justice. The very right of the wholé matter would be., to subject each heir to the payment of the ancestor’s debts to the amount of the assets that may have come to his hands; This was. all that the statuté.'meant. Tins could be dope by a separate suit against each; and therefore separate suits; are the- only suits provided for. where there has been no joint reception of the assets. The demurrer was, therefore, well taken .to the first and second counts of'the declaration; and had it been limited to those counts,'there would have been no error,in sustaining it. .The third count is the usual common count for money had and received, &c. To this count the demurrer was not well taken. It furnished no defence. Assuming to answer the whole declaration, and being insufficient'as to a part, it should have been overruled. The Court of Common Pleas in not over- . ruling it erred, and for that error their judgment' must be .reversed, » . •

Hitchcock, J.,

dissenting. Although, I concur in the reversal of the judgment of . the Cpurt of Common Pleas, yet I am constrained to dissent from the opinion of a majority of the Court, so far as that opinion is applicable to the two first counts of the plaintiff’s declaration. These; counts are based upon two promissory notes executed by the- ancestor of the defendants to the plaintiff, which notes are specifically set forth. It is- further stated, that the defendants: are heirs;, that, as such, assets to an amount greater than the sum due on said notes, have come to their hands ;' that the notes were not presented to.the administrators; that the accounts of the administrators had been fully settled with the court, and- the balance remaining in their hands, after- the payment of claims, presented against the estate, have, been'distributed to the defendants, as-heirs, .whereby they became liable, &c.

Whether these'two counts are Sufficient,- depends upon the proper construction of the 43d section of the act-of March 12, 1831, defining' the duties of executors and administrators; (Ch. Stat. 1784;) t This section is as follows: “ Nothing in the pre- ‘ ceding Section contained, shall impair the personal liability of ‘ heirs or devisees for the payment of any claim, against the es- ‘. taté of their ancestor or devisor; but such heirs and devisees ‘- shall remain liable, to the full extent of the assets by them ’• received from the 'estate, of, the ancestor ,or devisor, for the ‘■.payment of all claims against the estate of such ancestor or ‘ devisor; and any suit, which could be brought or sustained ‘ against such ancestor or devisor, were he alive, may be brought ‘ and sustained against such heirs and devisees, after the execu- ‘ tors or administrators of the ancestor or de,visor shall have ' ‘ made final settlement with the court, until the assets so re- ‘ ceived by such heirs or devisees, shall be exhausted: Provided always, that such heirs. or devisees ■ may make any plea or ‘ defence to such suit, which their ancestor or devisor could ‘ make, were he alive and such suit instituted against him.”

.The object of this section.of the law is apparent, and requires no comment. The case now under considération is prosecuted pursuant to it, and it is admitted, .that the averments of the declaration are sufficient. The only objection made is, that .the suit'is a joint suit against Ull the heirs, whereas, , as is insisted, it should .have been a separate suit against one pf the heirs, or, rather, separate suits against each one of the heirs. A majority of the Court adopt this mode of reasoning, and hold such to be the meaning of the, statute. If such be the proper construction, I must confess that I do not well comprehend the force of language. “Any suit which would be brought and ‘ sustained against such ancestor or devisor, were he alive, may be brought-against such heirs - and devisees ,” Not against one of- the'heirs separately,,but-against “such heirs and devisees” collectively. Such' is the . language, and, to my mind, such is the evident intent and meaning of 'the-statute.

But it is objected to this construction, that, after the recovery of judgment, a creditor might enforce the collection of his whole claim, by execution against oné of. .the heirs.- If this be an objection, jt is equally valid as against -the policy of separate suits. In .such case, the whole claim might be collected in one suit and from one of the heirs. ' But in either case, there can be no doubt that all would be liable, to contribution, , •

It is, objected,, that in ordér to a joint liability in-contracts, there must be a joint, undertaking, and-that there.’is not, in the case before the Court,’ any such joint .undertaking. I do not controvert the principle-advanced, but-cannot perceive its applicability to this case... These defendants are not sued,in-their own right, on account of any undertaking or promise of their own, but they are sued in a representative’ capacity, as heirs. This liability does not depend upon their own personal, obligation, but Upon the. fact,, vyhéther they have received any thing by descent from their ancestor, who, during his lifetime, .was under a personal obligation to satisfy , this demand. ■Executors or administrators.represent the estate of their,testator or intestate, and if there is. more than one; all must be sued. . Under the law of 1831, after the executor or ádministrator shall have settled up with the court, he ceases to represent the estate, and the heirs become the representative, as much so as was the .executor or administrator before the settlement. And as it is necessary, where there are more than one éxecutor or administrator, that all should' be sued, so it is necessary, where there are more than,one heir, that ' all should be sued. But neither executor, administrator nor heir can be made liable beyond the amount of assets descended. » ',

Whether a, similar principle prevails in any of our sister Spates, I .do not know, but in England, a man may, by his bond, bind his heirs.as well'as himself; that is, if, upon the face of the bond, the heir is bound, he'will be held, after the death of his ancestor, to the extent that lands shall have descended to him. This is a well known principle of the common law. But it was found that debtprs', with a. view .to defeat their creditors, adopted the .practice of devising> their' lands. This practice induced the passage of the statute of 3 ¡& 4 W. & M., by which it is enacted,', that, as to specialty creditors; such devises shall be déemed .and held to be void; 3 Bacon’s Ab. 461. The statute' further provides, that such creditors may have an action against the heir and heirs and devisees jointly.

So far as I can learn, it was never doubted that the heirs of an obligor might be sued jointly, before the passage of the act of 3 & 4 W. & M., nqr has it been doubted since the enactment of that law, that heirs and devisees could be sued jointly.' That I am not mistaken in, this opinion is, to my mind, manifest from the English precedents. 2 Ch. Pl. 161; Clift. Ent. 243 ; Ibid. 19; Lill. Ent. 145, 529, 53; 2 Rich. C. P. 241; 5 Wentr. 374.

I can see no good reason why this practice, adopted in the English courts, should not be pursued in this State, under 'a statute which is, in a great degree, ánalagous to the lavy binding upon those courts. ' It was the practice adopted by the pleader in the case now under consideration, and, as it seems to me, is consistent with principle and precedents'/ I hold, that the Court of Common Pleas erred in, sustaining the demurrer to the two first counts in the declaration, and, that, for that reason, the judgment should be reversed.  