
    KEZIAH ROBINSON vs. JOEL ROBINSON, Adm’r. of Charles Robinson, deceased.
    A. distributive balance appearing on an administration account passed before the register, falls under the seventh class in the distribution of personal assets, as a debt due by obligation.
    
    The action of the register in settling administration accounts is not the judgment or decree of a court of equity for the payment of money, within the meaning of the law which directs the order of payment of debts by an executor or administrator.
    Questions reserved by the Superior Court, New Castle county, for tearing before all the judges.
    An award was made in an amicable action, at the suit of Ke-tiah Robinson against the defendant, Joel Robinson, administrator of Charles Robinson, deceased, on the 18th of May, 1841, and judgment If assets thereon rendered on the 24th of May, 1841. Charles Rob-lison was, in his lifetime, executor of Valentine Robinson, deceas-|d; and the cause of action in said award was plaintiff’s share (as a Ihild and legatee,) of the residue of V. Robinson’s estate, as ascer-pined by the distributive account passed before the register for New lastle county in October, 1832. The defendant had assets in his lands arising from the sale of V. Robinson’s real estate by the lieriff, amounting to $722 13; and personal assets amounting to 1300. Charles Robinson left other debts to a large amount; among Ithers a debt due to James Goodly, by promissory • notes, upon Ihich judgment of assets was confessed by the said Joel Rob-ison, as administrator, on the 22d of May, 1841,.in the Superior lourt. The assets were not sufficient- to pay Goodly’s judgment and ■her claims of equal degree, and also to pay the aforesaid judgment ■' the plaintiff, obtained for the award.
    I The question submitted was, whether the debt due to plaintiff on ; distributive account passed before the register was entitled to payment out of the assets of Charles Robinson’s estate, in preference to the debt due to Goodly on promissory note, and other claims of equal degree.
    The plaintiff’s counsel made the following points: — 1st. That the account passed by Charles Robinson, as executor of Valentine Rob inson, stating the respective balances due to the legatees of the said Valentine, is the decree of a court of equity for the payment of money within the provisions of the act of assembly entitled “An act concerning the probate of wills, and the administration of the personal estates of deceased persons.” 2d. That the balance due on ar account passed before the register of wills, to the residuary legatee: under a will, is a bond debt of the executor.
    “Sec. 12. An executor or administrator shall pay the demand;] against the estate of the deceased according to the following order first, funeral expenses; second, the reasonable bills for nursing an necessaries for the last sickness of the deceased; third, wages of ser vants and laborers employed in household affairs, or in the cultiva] tion of a farm; but no servant or laborer to be allowed this prefer ence for more than one year’s wages; fourth, rent, not exceeding on year’s rent; rent growing due may be claimed at the election of tb person entitled to if in preference to rent in arrear; fifth, judgment] against the deceased and decrees of a court of equity against the d' ceased for the payment of money; sixth, recognizances and oblig: tions of recordfor the payment of money; seventh, obligations and co tracts under seal; eighth, contracts under hand for the payment of me] ney or delivery of goods, wares or merchandise; ninth, other demand
    If an executor or administrator after the expiration of six moni from the granting of letters testamentary or administration, withoi notice of a demand of a superior order, pay a demand of inferior o der, such payment shall be allowed, notwithstanding a demand superior order, of which he had not notice.
    Such notice need not be by action. An executor or adminisfr tor shall be deemed to have notice of judgments, decrees, recogn zances and mortgages of record in the county wherein the lettel are granted, unless there have been a failure to insert such judl meats, decrees, recognizances or mortgages in the alphabet of tí docket or record wherein the same stand: except judgments and cognizances before a justice of the peace, of which and also of del of record in another county an executor or administrator shall n| be charged with notice, unless actual notice be given.”
    
      Mr. Attorney-general Gilpin, for the simple contract creditors. — -
    1st. In my view the notes are of higher grade in the administration of assets than the balance appearing on the administration account. An account passed by an administrator here, is of the same-character as the account passed in England before the ordinary, which only reports certain amounts afterwards to be disbursed by order of a ourt of equity. The administration account is no more here. The alance upon it is not a judgment or decree, but the subject of an ction, and the evidence of claim. It will be said that the register s a judge, and his court a court. Granted. For certain purposes he is a judicial officer; but in reference to this matter he does not act n a judicial capacity, or exercise any judicial function. The execu- or or administrator files his account, without notice to the heirs or ext of kin; it is an ex parte proceeding, altogether. (Const. Art. 6, 'ec. 21.) If this be a decree of a court of equity, where is the pow* r to enforce it. The law never intended that in the settlement of hese accounts the register should act as a judge, but as an auditor, audit and settle the account. The constitution distinguishes between these characters in this officer. (Sec. 22.) The register is a dge, and sits in a court for certain purposes; when there is a cause be heard and decided, a case litigated, his court is a court for the ial of causes within his jurisdiction; but for other purposes (Sec. 21) e acts merely as an accounting officer, to audit accounts ex parte; ot so as to establish any right by judicial decision, otherwise it could e enforced by the same authority. Why should the legislature pro-ide a remedy for the recovery of the balance so ascertained by aeon of assumpsit, if the matter had been already adjudicated? As the distributive account I do not refer to that, but to the adminis-I'ation accounts. There is no authority for passing distributive ac-unts by the register, nor any right or obligation arising under them. Id. Is this balance a debt due by obligation? How? The adminis-ator gives a bond; but this is a suit not upon the bond, but an action assumpsit to recover the balance appearing on this account. The nd does not admit any thing due to this plaintiff, nor engage to a.y her any thing. It is a general obligation of the administrator to’ brform his duties.
    
      Mr. Bayard, contra.
    1st. No analogy can exist between the settle-lent of administration accounts in England and here, nor can any ar-jment be drawn from such comparison; for the settlement of accounts tfore the register, and'their effect, are fixed by our constitution and laws. But if such comparison could be made, there exists no re~ semblance. The ordinary is no judicial officer; he does not settle the account or audit it. It is filed before him by the administrator, merely as the statement of the party, and he is required by his bond to file it. But in our practice the register does adjudge and decide many things in the settlement of this account; he allows or refuses to allow the items, and judges of the vouchers, and his decision is con elusive, unless appealed from. Now this is judicial action; and byi the constitution this officer is a judge. He has authority to decidel what is due from the administrator and to whom. It is no answer to this to say that he cannot enforce payment of the amount, exceptl through another proceeding. The question is not one of remedy but what is the character of the settlement. Is it not the judgmen or decree of a court of equity? If it be, it has preference in the or der of payment of debts. If the power to enforce payment be th criterion, this would equally exclude the decree of the Orphans Court on appeal from the register, from the character of a decree o judgment. For this cannot be enforced except by action in a cour of law on the administration bond, or otherwise. Yet would not sum ascertained by the Orphans’ Court have preference in the ad ministration of assets? Is it not a sum due by judgment or decree The act giving preference does so on the ground that a sum whiclj has been investigated by a court of justice and ascertained by judii cial action, is of higher grade than a mere claim not adjudicated and the reason of this preference applies equally to the decision o the register in settling and passing accounts. Under the constitutio of 1792, jurisdiction was given to the Orphans’ Court by appeal fro the sentence or decree of the register. By the amendment of ISO. the chancellor had appellate jurisdiction from the sentence or deer. of the register, settling these accounts. These words would be witlJ out meaning if the decision of the register be not a sentence, decrel or judgment; and the late constitution is a proper subject of referencl in the construction of the amended constitution. The law directing the order of payment of debts by an administrator, prefers “jude ments against the deceased, and decrees of a court of equity again! the deceased for the payment of money; recognizances and obliga tions of record for the payment of money,” before obligations anl contracts under seal, or contracts under hand for the payment money or delivery of goods, &c. (Digest 225 § 12.) Why shoul the legislature give a preference to decrees of a court of equity, ui less they meant to prefer debts ascertained by the Orphans’ Court and register, as well as decrees in chancery. For besides these there can be no judgment which is a decree of a court of equity, and the legislature would have said at once decrees of the chancellor. And without this construction debts ascertained by the decree of the register, or even by the decree of the Orphans’ Court on appeal, though fully litigated by both' parties, are still of no higher grade in reference to the administration of assets, than a mere book account or simple contract debt. Within, therefore, both the policy and the language of the act of assembly, and of the constitution, a debt thus ascertained is entitled to preference in the administration of assets, to simple contract debts which have never been submitted to judicial action. 2d. The other point hás been made by me more for the purpose of raising the question to have it settled, than because 1 have formed any decided opinion in its favor. The difficulty I have is, that though this should be regarded as a debt due under the administration bond, that bond is taken in the name of the State, and it would be a debt due to the State; but there is something in the law which looks as if the legislature intended to protect such debts as this, and give them a preference as bond debts.
   The judgment of the court was pronounced by judge Harrington.

Hab.ringtoK, Justice:

The constitution makes a manifest distinction between the duties of the register as an accounting officer, and his functions as a judge sitting in the register’s court. Section 21 of article fi, regards him as an auditor to examine, adjust and settle administration accounts, and gives an appeal from this settlement to the Orphans’’ Court, where alone these accounts can be questioned. Section 22 considers him for certain purposes as a judge, and au-ihorizes him to hold a court. It makes provision for the “litigation >f causes,” and requires depositions to be taken down as a part of ;he “proceedings in the cause.” It contemplates parties litigant and Hidversary proceedings, neither of which is contemplated or practi-■Kally observed as to the matters referred to in section 21. From Whis court the appeal is to the Superior Court.

M The settlement of an account under section 21, is not a decree for Hhe payment of money.

H It is ex parte. Though it ascertains an amount and binds the admi-Hdstrator until appealed from, it is no decree or judgment for the pay-Hnent of money. It cannot be enforced without action. Such ac-IBon cannot be founded upon it, but must be on the administration. bond, or in assumpsit on the administrator’s general liability, or under the ac,t of assembly which gives the action of assumpsit to the heir; and regards the settled account merely as the evidence of the debt.

If this be a decree for the payment of money, it would marge the action of assumpsit and the action on the bond, and the plea would be nul tiel record, and not non-assumpsit, non est factum, or nil debet.

In the distribution of assets an administrator would have to notice it, if properly alphabeted, without action. This would be a dangerous principle, as well as new. No one looks into the register’s office for judgments or decrees. It might possibly deprive the administrator of the power of showing the payment of debts due from the deceased, made after the settlement, though the law says that this shall be a sufficient answer to the demand of the heir.

It would give this mere settled account priority in the distribution of assets over recognizances and obligations of record for the pay-1 ment of money, as well as obligations and contracts under seal, which the legislature could not have intended.

It cannot be a decree for the payment of money, because it does I not ascertain definitively the persons to whom it is payable; and it I would be dangerous to permit the register in this ex parte proceeding to try this question, and conclude the rights of the heirs-at-law,I or persons entitled to shares of the estate. The constitution does! not direct the register to distribute the balance, but only to adjust! and settle the accounts. The act of assembly (Dig. 227,) directing! in what manner the residue of personal estates shall be distributed,! has reference more to the parties entitled and their rights, than to the! duty of the register in ascertaining who these parties are. This! view derives force from the condition of the administration bond] which requires the administrator to distribute and pay the residue tc the “-persons entitled,” an obligation which no mistake of the regis-J ter in passing a distributive account would excuse. If that act au-[ thorizes the register to pass distributive accounts, it is safer to con-1 sider those accounts as open to correction, as they would be in arl adversary suit, than to regard them as definitive decrees, though ex-1 parte. The passing such accounts is not the settlement or adjustj ment of an administration account, but something subsequent ir| which the administrator has no interest, right or duty, and as which there is no party litigating before the court. This act if it bd a decree, must be derived from a constitutional power in the registe! to make such decree; but it is not an act referred to or authorized by section 21 of the constitution. If there be error in any such distributive account, and it is a decree, there is no means of correcting it. The only appeal given by section 21, is to the Orphans’ Court, and the questions to be tried on that appeal have reference only to the administration accounts. “Exceptions may be made by persons concerned to both sides of every such account.”

No writ of error would lie apart from the constitution; because such writ lies only where the proceedings are according to the course of the common law; and the register’s court, (if in this matter it be a court,) is a summary jurisdiction, compounded of law and fact, which the Court of Errors and Appeals could not try. A certiorari would not lie; and, if it would, it would not be available, for the error would not appear on the face.of the record. v No writ of error is given by the constitution; and it follows that such a decree could not be corrected in any form.

I If it be a decree there is no means of enforcing it, either originally or after appeal to the Orphans’ Court, but by action founded directly upon it; which would not open this question as to the rights of other parties entitled to distributive shares, and would be liable to all the objections before stated. Such an action, besides being unprecedented in our courts, would contradict the decision in Davis vs. Rawlins, (ante 346;) for on the settled doctrine of merger, no action lof assumpsit can be maintained on the general liability of an admi-Inistrator, after that liability has been fixed by a judgment or decree; land for the same reason it would prevent any action on the administration bond.

I It would change the act of limitation as to the liability of the ad-Ininistrator in respect to such settled accounts, which is six years from the date of his bond; and make him liable to an action founded fcn the decree for twenty years from the time of passing the accounts.

I The law (Dig. 226,) did not intend to include such a claim as this In the fifth grade as a judgment or decree for the payment of money, ■or it provides no means of notice to the administrator; and though It requires him to take notice of judgments and decrees, it expressly ■xcuses him for neglecting to notice such, if there has been a failure lo insert such judgments, decrees, &c., in the alphabet of the record B>r docket wherein the same stand. There is no law requiring any alphabet or index to be made of the settlement of administration accounts.

J. A. Bayard, for plaintiff!

Gilpin, for defendants.

On the second question we are of opinion that this may be fairly regarded for the purposes of the distribution of assets, as a debt due by bond or obligation under seal. It is secured by the bond; and the proper remedy for it is by a suit on the bond. The sum is fixed in respect of the administrator by the settlement before the register, if not appealed from, and by the Orphans’ Court on appeal; and the condition of the bond obliges the administrator “to pay it to the person or persons respectively entitled to receive the same.” It does not matter that this bond is in the name of the State, for the same thing is true of “i’ecognizances and obligations of record for the payment of money,” and these are placed by the act in a grade higher than is now assigned to this debt. As a bond debt it is rightfully placed in a rank higher than simple contract debts and other demands; and the placing it in this rank will in no respect embarrass the administration of assets, for the notice to the administrator will be by action. It leaves him as before to look to those claims which have attained the high rank of judgments or decrees where such claims are usually recorded, and in respect to which the law furnishes him with easy access, by requiring correct alphabets to be made, and excuses him from any neglect in noticing such as are not so indexed. (Dig. 394, 226.)

The chancellor doubted and expressed his doubts as to the second point: he fully agreed as to the first; and was inclined to agree as to the second, on the ground of its equity and justice.

Ordered, that it be certified accordingly.  