
    Octavius H. Gadsden vs. George Jones, Administrator, and Mary Jones, Adm’x. of William B. Nuttall.
    A., administrator of B., was, by the judgment, or decree of the County Court, ■under Act of February 15, 3834-, sec. 5, discharged as administrator of B On the same day with the discharge, a suit was instituted against A., as administrator, to which A. pleaded his discharge. Held, that the judgment, or decree, discharging A. from the administration, was a bar to such suit.
    A discharge can be obtained by an Executor or Administrator only after six months’ notice of his intended application for a discharge has been given, ■and after he shall have faithfully and honestly dis^targed the trust and confidence reposed in him; and it is the duty of the Judge of Probate or County Court to see, before granting such judgment or decree of discharge, that he has well and truly administered, paid the .debts so far as the assets would go, and made distribution of the rest, or residue, of the estate according to law.
    By the Act of 15th February, 1834, sec. 5, a discharge granted an Executor or Administrator by the County Court, or Court of Probate, is an immediate and effectual bar to suits instituted against such Executor or Administrator in their fiduciary capacity; but it is not a bar to a suit against the person so having acted as Executor or Administrator, for any personal liability incur - red by him in the management of the assets, if the suit be brought within five years from the date of the discharge.
    When a suit is brought against the person who had acted as Executor or Administrator, the onus probandi rests on the plaintiff to show by his pleadings and proofs, that at the time when the discharge was granted, the Executor or Administrator had not faithfully and honestly discharged the trust and confidence reposed in him.
    Ekkok from Jefferson Circuit Court.
    Assumpsit by Plaintiff, as Endorsee-of a Promissory Note, against Defendants, the Administrator and-Administratrix of William B. Nuttall, the maker thereof. The case was tried at the Spring Term, 1846, ,of Jefferson Circuit Court, Judge Macrae, presiding: .
    
      Pleas: 1st. Gen. issue. •' -2d. Statute of limitations. 3d. Plene Administravit. 4th. That defehdants bad béen -discharged of'and from their'administration of the estate of William B., Nuttall, deceás-ed. The case was decided on a demurrer to the 4th -plea, which, with the other pleadings, is recited in the opinion of,the. Court.
    The demurrer to the 4th.plea having-been overruled, .plaintiff sued out his Writ of Error. . , , , -
    T. H. Hagner, ('with whom was L. A. Thompson), for Plaintiff in Error, argued: ■ ' ,
    That the main question in the Record, turned upon the validity of the 4th plea of Defendants- in Error, ás' a- bar to this action. That plea is, that “ on the day o.f the commencement of this aetion, and before its commencement on the 25th March, 1844; the Defendants were duly and lawfully discharged from'their administration-of the estate of Nuttall, by the County Court of Jefferson County.” ' The .Plaintiff in Error demurred specially to this plea, and assigned as causes f 1st. That there was no allegation of full administration, nor of their delivery over of the property to any new’Administrator. 2d. That the Defendanfs (3o not allege that they had no notice of the demands of the Plaintiff in’ the declaration mentioned before or at the time of their alleged discharge.' •
    On the first point,, -he cited^ 2d Wrps. on Executors, 1196;— Wentwbrth on •- Executors, 472; Packman’s, case, 6 Coke, 18;, 11 Yiner’s' Abridg. 118 — 9; Keble vs.-’Keble, Hobart, 49; 3 Chitty’s Pleading, 1240. • v *, 1
    On the 2d point,- he insisted that whether the discharge set up be by virtue of the Statute- (of 1834, sec-. 5, p. 188, of Duval) or according to the course of the common law, that it could not operate to discharge the-Administrator from liability to-satisfy, those; d.ebts of which he had notice, and for which, therefore, he was entitled to retain.
    Upon the construction of the Stat. of 1834, above referred’to, he took two exceptions to its operation in this case as a bar. " In the first place, the discharge by the Statute Only is made to operate as a release from the duties of Administrator or Executor prospectively— not an exemption from liability already incurred, hor to pérmit him to screen himself from existing responsibility. ' Having had notice of this demand, his duty as Administrator was fixed by law; and from that responsibility it was not the design of the Legislature to release him. It would have been no valid objection to the release contemplated by this Statute, for any creditor to object that he had not yet paid a debt pf which he had had notice ; the ready answer, would have been, “ I retain for it. I cannot exempt myself from past responsibility, by being released from, future duties.” Next, the Statute expressly declares that the operation of this discharge as a bar to any suit, shall not commence “ until five years from the date of such discharges,” against the person so having acted as Administrator or Executor: — that is, for their actings and doings prior to their discharge. Of course, it would be answer enough to any action against him as Administrator or Executor, founded upon any new demand against the estate, arisen after the date of the discharge, and 6f which he had had no notice, that he is not such Executor or Administrator: for as to all such new duties, the discharge operated as a release. Thus the whole Statute is made sensible, and works no injury to any man,
    
      A. E. Maxwell, for Defendant:
    The plea is good, and the demurrer properly overruled. ’Tis a plea of ne ungues administrator; the substance of it being, that they are not “ now Administrator or Administratrix,” and the matter about discharge being added by way of explaining the substantial part relied upon. The plea of ne ungues, &c., can be pleaded in bar. 1 Tidd, 644. It is not a plea in which full’ administration, or the turning over of assets, is ever set up. The fact itself, that the party is not Administrator or Administratrix, is a sufficient bar.
    It is contended, however, that it is a plea of discharge, and analogous to a plea of revocation of letters. Admitting that a plea of revocation, and grant of letters to another, should aver full administration, or the turning over of assets, yet that doctrine cannot apply to a plea of discharge under our Statute. A distinction must be drawn between revocation and discharge. The former presupposes error or fault; the latter can only be given when the Court is satisfied that the Administrator has “ honestly and faithfully discharged ” his duties. While, therefore, in the former, the party might be required to account in'the plea as to his administration, there would be no propriety in this in the latter; for the Court which discharged him has given a judicial sanction to his acts.
    Besides the notice which Administrators are required by the Statute to give to creditor's to present their claims against the estate, full notice is also required before a discharge can b:e had. .Duval, 188. Any person having a claim against thé estate', or other objection to the discharge, is by this notice.warned to make it known, otherwise not to raise objection afterwards. * This must have been the intention of the notice. The discharge must be complete for all purposes, and if there is any-liability after that, it must be upon the administration bond — not against the administrator as such, but, in the language of the Statute, against “ the person so having acted ” as Administrator.
   Dougxas, Ch. J. :

This suit was brought up by writ of error from the Circuit Court of Jefferson County. It was instituted, (as appears by, the declaration), to recover the amount of a promissory note for two hundred and two dollars, with interest from the first day of February, eighteen hundred and thirty-four, given by' William- B.'Nuttall, (in his life time), to one Francis C. Pripleau, and endorsed by him to-the plaintiff. The defendants put in four pleas. . First, the general issue. Second, the Statute of Limitations. . Third, Plene Administravit; and Fourth, a plea in the following words, to wit: And for further plea in this behalf) said defendants come and defend the wrong and injury when, &c., and say actio non; because they say they are not now either o.f them Administrator, or Admiriistratrix of the said William B. Nuttall, deceased; but on the day, and year of the commencement of this action, and before its c'ommencenient, to wit, on the 25th day of March, 1844, in the. County aforesaid, they were by competent authority, to wit, the Hon. the County Court of Jefferson County, duly and lawfully discharged of and from their administration of the said estate of William B. Nuttall,, deceased, as appears by the record remaining in said County-Court, and this they are ready to verify by said record. Wherefore, they pray judgment, &c.

Upon the first plea, issue was joined. To the second and third, the plaintiff, by his counsel, demurred ; and his demurrers were sustained. To the fourth, the plaintiff, by his counsel, put in a special demurrer, and, assigned therefor the following causes, viz :• For that the said defendants do not allege in their said plea, that they have fully administered all the goods'and chattels, lands and tenements, rights, credits and effects, which were'of said William in their hands to tbe administered; nor do they therein allege that they have delivered all arid' singular the goods and chattels, -&C.; in their hands to be administered,..not administered at the date -of their alleged discharge from said administration, to the hands of such person, or persons, (if any such there were), named and appointed Administrator or Administratrix in their' place and stead, and to whom administration of the goods and chattels, lands and tenement’s, rights, credits and effects of the said William, unadministered by the said defendants, hath been granted : and also, for that the said defendants do not in (their said) ple.ai allege- that they' had no notice of the Said demand of the said plaintiff in said declaration mentioned, before or at the time of their alleged discharge:' and- also, for that said plea is in othqr respects uncertain, informal and insufficient, ‘ • , .

-This demurrer -was overruled, the plea sustained,-attdfor that cause alone the case was brought up to this Court, ,

The errors assigned are : 'First, .The Court erred in overruling the demurrer of the plaintiff to the defendants’ fourth plea. Second. The Judgment of the Court should have been for. plaintiff below on said demurrer. . • • <

The Statute authorizing the discharge of an Executor or Administrator is in the following words, viz : That if any Executor or Executrix, Administrator or Administratrix, shall be desirous of obtaining a discharge from his or her executorship or administratorship," it shall be competent for him of her to receive the '^ame upon application-to the Judge of the County Court, or other person charged -with the. duti’es-qf ordinary. Provided, That six months’ noticfe of such intended application-be given in one oS more of the gázettes-neafest the place where the letters were ‘granted"! And provided also, That it shall appear that said applicant has faithfully-and horiestly discharged the trust and confidence reposed in him or her; and the discharge so obtained, shall' be taken to opera'te as a release, from the duties of Executor or Executrix," Administrator of, Administratrix; and shall furthermore operate as a bar to any suit against the person so having acted as Executor or'.Executrix, Administrator or Administratrix, unless the sanie be commenced within five years from the date of such discharge, 'saving to 'all persons non compos mentis, infants, imprisoned, or beyond the seas, who may have any interest in the said estate two years from the time of the removal of any disabilities herein enumerated. See Act of 15 February, A. D., 1834, sec. 5, Duval’s Comp., page 188.

This presents several very important questions upon the construction of this Statute, which have been very seldom raised, and never, it is believed, settled by any authoritative decision in this State; and which, viewing them in any aspect in which they may be presented, are not perhaps entirely clear of difficulty, although we think that a due consideration of the phraseology of the section referred to, and the application thereto of the proper canons of construction, will leave little room for doubt upon the subject. Whether there is such a Statute in any other state or country, we are not advised; certain it is, that we have not been referred to any decisions made upon a Statute like this, and without the aid of any such decision we must endeavor to construe it by such lights as we have.

This case has been argued on behalf of the plaintiff in error, as though it stood upon the same grounds as if there had been a revocation of the letters of administration granted to the defendants in error upon the estate of Nuttall; but a reference to the reasons for a revocation of such letters, and the mode of proceeding in relation to a revocation, and the mode of proceeding to obtain a discharge under this Statute, and what the Statute requires to be shewn before a discharge can be granted, it will be seen that the two cases are widely different, and bear little or no analogy to each other. If there be an Executor, and administration is granted before probate and refusal, it will be revoked on the will being afterwards proved, because it is void. Comyn’s Digest, Title Admr., B. 1. Or, if there be two Executors, and one of them proves the will and the other refuses, and he who proved the will dies and administration is granted before the refusal of the survivor, subsequently to the death of the Co-executor. Abrams vs. Cunningham, 2 Levintz, 182. Toller on Executors, 120, (to which' many other cases of a similar description might be added). Also, if granted by incompetent authority. Tol-ler on Exors., 120. In all these instances the administration is a nullity. But there is another class of cases, where administration is not void, but voidable only; as if administration be granted to a party not next of kin. Blackborough vs. Davis, Salk. 38. 1 P. Wms. 43. Or to one of kin together with one not of kin. Comyn’s Digest, Title Admr. B. Or to the wife’s next of kin, instead of the husband’s, 11 Vin. Abr. 11. Or if it be granted on the refusal of an Executor who had before administered. Comyn’s Digest, Title Admr., B.. 8. Or to a stranger. Wilson vs. Patterson, Moore, 396. Or if the grantee has become non compos mentis, or otherwise incapable. 11 Vin. Abr. 115,116. In all these cases, and many more that might be added, the revocation is made on the grounc] that it was granted improvidently, or was granted to the wrong person; or that circumstances have occurred since it was granted, which shew that it ought not to be any longer continued in the same hands. Our Statute seems to have added another, viz: “ Where the securities on any bond given by Executors or Administrators are insufficient, the Court or Judge shall order that additional security be filed; and if not complied with, within such time as shall be directed in said order, the said Court or Judge may revoke the letters testamentary or of administration and appoint a receiver or other administrator.” Act of 20th Nov., 1828, Duval’s Comp, page 176, sec. 31. In England, the ordinary cannot revoke the grant on account of abuse, and the reason alleged is, that he ought to take sufficient caution in the first instance to prevent maladministration. 11 Vin. Abr. 15. Thomas vs. Butler, 1 Ventre, 219. Toller on Extos. 125.

At common law the ordinary might repeal an administration at his pleasure; but now, since the Statute 21st Hen. 8, if administration be regularly granted to the next of kin, according to the provisions of the same, the ordinary has no such discretion. If he assign a cause for a repeal, the temporal courts are to judge of its sufficiency, 11 Vin. Abr. 114. Comyn’s Digest, Title Admr., Book 8. Black-borough vs. Davis, 1 Peere Wms., 42. How far the Statute of 21st Hen. 8, affects the powers of Judges of Probates in this State, or whether it affects them at all, it is not necessary for us now to en-quire. It certainly does not prevent a revocation of letters by them, pursuant to the provisions of the 31st section of the Act of 20th Nov. 1828, above cited. In every case, however, of a revocation of letters of administration, whether absolutely void or merely voidable, the Court, at the instance of some person interested, or upon its own motion, proceeds against the person to whom administration has been committed; and upon the ground, too, that he never had any just claim to such letters, or that the interests of those who have a claim upon the estate would be jeoparded by his being permitted longer to hold it, and not upon the ground that the.person to whom such let. ters had been granted had fully administered. In the proceeding now under consideration, the Court (after due notice) acts upon the application of the party to whom administration was granted, (and who seeks a discharge), and cannot grant such discharge until it shall appear “ that the said applicant lias faithfully and honestly discharged the trust and confidence reposed in him or her.” Now, wbat is the trust and confidence reposed in an Executor or Administrator ? This will be best answered, perhaps, by referring to the oath which they are respectively required to take in relation to the performance of this trust, and the act concerning wills, letters testamentary, and letters of administration, and the duties of Executors, Administrators and Guardians. Sec. 4, Duval’s Comp., pages 169, 170, provides, “that all Executors taking out letters testamentary on the estate of their Testator, and all Administrators with the will annexed, shall make oath, or affirm, before the Court or Judge, that they will well and truly perform the last will and testament of the Testator and pay all just and lawful debts, so far as his goods and chattels, rights and credits, will extend, and that they will make a true and correct inventory of the same, and render a true account of their administration when required.” And every Administrator is required by the same Act to “swear, or affirm, that he will well and truly administer all and singular the goods and chattels, rights and credits, of sajd deceased, make a just inventory of the same, 'pay Ms debts as tar as the assets of the estate shall extends and the law direct, and make a fair distribution according to law, and render a true account of the administration of the estate when thereto required.” The bond required by the 9th section of the same Act, Duval’s Comp., page 170, also imposes upon an administrator an obligation “ well and truly to administer all and singular the goods, chattels, rights and credits, of the deceased, at the time of the death of said deceased, or which at any time after shall come to his hands or possession, or into the hands or possession of apy other person or persons for him, according to law; and, further, to make, or cause to be made, a true and just account of his administration when required, and to deliver and pay all the rest and residue of said goods and-chattels, which shall be found remaining upon said Administrator’s account, the same being first examined and allowed by the County Court of the county where the said administration was granted, to such person or persons respectively as the same Court by their order or decree, (pursuant to the true intent and meaning of this act), shall appoint and direct.” And if we resort to the principles of the common law on the subject, we shall find the trust and confidence reposed in Executors and Administrators is in effect the same. Now how can it be said that an Executor or Administrator has faithfully and honestly discharged the trust and confidence reposed in him until all these requirements have been, fulfilled — until the Executor has well and truly performed the last will and testament of the Testator, and paid all just and lawful debts so far as his goods and chattels, rights and credits, would extend, &c.; or the Administrator has well and truly administered all and singular the goods and chattels, rights and credits of the deceased, made a just inventory of the same, paid his debts so far as assets extended and the law directs, and made a fair distribution according to law, &c. 1 We think it cannot, and that it was the duty of the Judge of the County Court, before granting the discharge set up as a. defence in this case, to see that these defendants had well and truly administered, paid the debts so far as the assets extended, made a fair distribution of all the rest and residue of the estate, according to law; because without this they cannot be said to havefaithfully and honestly discharged the trust and confidence reposed in them. The word discharged here means performed, executed, freed from obligation. Before the Court can hear the application of an Executor or Administrator under the provisions of this act, before it can even take jurisdiction of the case at all, “ six months’ notice,” (as we have seen), ‘£ of such intended application must be given in one or more of the gazettes nearest the place where the letters were granted.”

Does a discharge, obtained pursuant to these provisions, operate as a bar to suits instituted against the person who has been thus discharged, in the character of Executor or Administrator, treating him and charging him as such in the same manner as though no such discharge had been granted ? This question depends upon the proper construction of the fifth section of the act of 15th Feb., 1834, before cited. One of the primary rules laid down by the sages of the law for the construction of Statutes is, that “ there are three facts to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy," — that is, how ■ the common law stood at the time of making the act, what the mischief was for which the case did not provide, and the remedy the Parliament hath provided to cure the mischief. 3 Reps. 7, Co. Litt. 11, 42. 6 Bac. Abr. Title Statutes, 383. 2 Inst. 301. Now what was, the old law? By the common law, as it stood at the time of the .passage of this act, an Executor or Administrator, although he may have fully administered, although he may, (in the words of the act), have faithfully and honestly discharged the trust and confidence reposed in him, he could not obtain a discharge. The mischief was that he still remained liable to be sued by creditors, legatees and persons entitled to distribution ; and to defend every such suit, was obliged to employ counsel, put in his plea of plene administravit, go. into an investigation of his accounts, and shew that he had fully administered ; by which, even if he succeeded in his defence, he was put to great vexation, trouble and expense ; but by sickness, loss, of vouchers, or other casualty, both himself and counsel might be prevented from making the necessary defence, and a judgment would in such case be obtained against him without any proof of assets, which would render him liable to pay the debt out of his own estate, (if he had any), and would render his sureties liable, wherever surety had been given, (and it must be given in all cases by Administrators, and in some cases by Executors also); and where the defendant should be unable to satisfy the judgment, his sureties would of course be compelled to pay it for him, unless indeed they could shew, (as the statute would permit them to do), that he had fully administered ; to do which, would subject them to the same vexation, trouble and expense, which would be a great hardship on them, thus placing a party in a situation most inconceivably distressing to an honest and ingenuous mind. Another evil resulting from this state of things was its tendency to present persons the most suitable for the discharge of such duties from incurring such interminable liabilities. The remedy intended by the Legislature was, we think, a speedy “ release from the duties of Executor or Executrix, Administrator or Administratrix,” after a faithful and honest discharge of the trust. And another rule of construction requires that in construing a statute, the' intention of the makers is to govern, although such construction may seem to be contrary to the letter of the statute. Bac. Abr., Title Statutes, 383. Jackson vs. Collins, 3 Cowen, 89. Reddick vs. Governor, 1 Miss., 147. Beall vs. Howard, 2 Harr. & John., 167. Wilkinson vs. Leland, 2 Peters, 662. People vs. Utica In. Co., 15 John. 338. Minor vs. Mechanic’s Bank of Alexandria, 1 Peters, 64. Dwarris on Statutes.

We are not obliged in this case, in order to sustain our view of the proper construction of this Statute, to carry the intention of the Legislature beyond the literal words of the 5th section of the Act, or to put a construction upon them that may seem even to be contrary to the letter. Until we arrive at the provision in the Statute now under consideration, Executors and Administrators are always spoken of as such, but here the phraseology of the Act changes. They are no longer spoken of as Executors and Administrators; no longer considered as such, and certainly they no longer represent the estate.— To this the case, of Skinner vs. Frierson & Crow, 8 Alabama Rep. N. S. 915, which arose under a Statute of that State, authorizing Executors and Administrators to resign their authority by writing, delivered into the Clerk’s Office, Aikin’s Digest, 127, is in point. The words of the provision we are discussing, are, “ and the discharge so obtained shall be taken to operate as a release from the duties of Executor or Executrix, Administrator or Administratrix; and shall furthermore operate as a bar to any suit against the person so having acted as Executor or Executrix, Administrator or Administratrix, unless the same be commenced within five years from the date of said discharge.” The discharge is not a bar to any suit brought against the person so having acted, if brought within five years from the. date df such discharge. This change of phraseology, we think, has a meaning too clear to be disregarded.

The distinction between suits against Executors and Administra, tors “ as such,” and suits to charge them personally, runs through all the books, is familiar to every lawyer, and must be supposed to have been known to the Legislature who passed this Act; and having provided for a discharge which should operate as a release from all the duties of Executor or Executrix, Administrator or Administratrix, they took care, (in authorizing suits to be brought against them after such discharge), to use a term which only authorizes suits to charge them personally. “ Any suit against the person so having acted,” is clear and definite, and would seem to admit .of no misapprehension. “ A Statute ought, upon the whole, to be so construed that if it can be prevented, no clause, sentence or word, shall be superfluous, void, or insignificant.” 1 Shower, 108.- Bac. Abr., Title Statutes, 384. One part of the Statute, too, should be so construed by another, that the whole may, if possible, stand. TJt res magis vdleat qaam pereai., 1 Reps. 48. 1 Blk. Comm. 89. The words, “ the person so having acted,” are very significant. Suits may be brought against the person so having acted; but when they are so brought, the burden of proof is changed. The onus probandi rests on the plaintiff; and he must, to enable him to recover, shew by his pleadings and his proof, that at the time when the discharge was granted, the defendant had not faithfully and honestly discharged the trust and confidence reposed in him or her. This is the remedy intended by the law-makers for one of the evils above suggested, and it is a remedy of which the plaintiff has no cause to complain. The application , for such discharge is a proceeding in which all the persons interested in the estate are to be brought before the Court by advertisement for six months, the Statute seeming to suppose what in most cases is true, that an Executor or Administrator cannot know the names of all creditors, and persons entitled to distribution. The Statute does not say in terms, what effect this notice is to have; but if it can have a sensible meaning, it should not be disregarded; and when we see the next proviso, to wit, that if it shall appear that said applicant has faithfully and honestly discharged the trust and confidence reposed in him or her, we are led to the conclusion, that the six months’ notice was designed by the Legislature to give all creditors and distributees, ample time and opportunity to appear and contest the question whether the Executor or Administrator had in fact “ faithfully and honestly discharged the trust and confidence reposed in him or her.” If they fail to appear, the discharge, of course, is granted upon the applicant’s own showing, if he satisfies the Judge of the faithfulness and honesty of his transactions. If they appear and contest, and the decision is against them, they have a remedy by appeal under the provisions of the Statute; and in either case, they still have a further remedy by suit against the person, as before stated. No such discharge can be granted until the expiration of two years from the grant of letters testamentary or of administration; because that time is given by the 18th section of the Act of 20th Nov., 1828, above mentioned, within which to present claims against the estate, unless it be where the assets have been entirely exhausted by the payment of privileged debts, under the provisions of the 29th section of that Act, or of the Act of 12th February, 1841, amendatory thereto. See Acts'of 1841, page 186. And due notice is required by law to be given for the presentation of all claims against the estate by the 20th sec. of the Act of 20th Nov., 1828.

This is not a solitary instance where our Legislature has evinced a laudable disposition to save the honest and praiseworthy from the grasp- of a rapacious creditor, while it has taken care, at the same time, to leave an open way whereby to reach dishonesty and fraud. The Supreme Court of Alabama, in the case of Thomason vs. Haynes’ Executors, 5 Stewart & Porter, 181, held that an Executor cannot, by a resignation of his authority as such, avoid the rendition of a judgment against him as may be in regular progress for assets un-administered at the time of his resignation; but remarked, “ What would have been the consequence of a resignation at an earlier stage of the administration, it-is not now necessary for us to enquire.”

This proceeding, however, is essentially different from the one we have been considering. There, no notice is given, no account required, no shewing made or required to be made of a full and faithful administration, no action of the Court is had. Here, was a full accounting, and a judgment of a Court of competent jurisdiction, which we are not at liberty to disregard, rendered in a proceeding governed entirely by the provisions of a Statute highly remedial; a proceeding to which the ordinary rules relating to the rights of creditors in the Ecclesiastical Courts and Courts of Probate have no application. But a judgment to .which the general principles of law relating to the conclusiveness of judgments, do not fully apply; for by those principles, a judgment of a Court of competent jurisdiction is conclusive upon the parties as long as it remains in force. Wallace vs. Usher, 4 Bibb, 508. Hayden vs. Booth, 2 A. K. Marsh. 353. So a judgment or decree of a Probate Court, is conclusive between the parties, until legally disaffirmed, and cannot be enquired into collaterally. Judges of Probate vs. Filmore, 1 Chipman, 423. Bush vs. Sheldon, 1 Day. 170. This judgment, however, owing to the peculiar provisions of the Statute, is not so far conclusive as to bar suits against the person to whom letters testamentary or of administration have been granted, and who have been duly and legally discharged, if brought within five years after the date of such discharge, for any personal liability incurred in the management of the assets; and why should a suit be brought for any other purpose ?

This discharge is “ to operate as a release from the duties of Executor or Executrix, Administrator or Administratrix.” This language is in “ presentí,” but a release from these duties would not (it is apprehended) operate as a bar to a suit brought against the person who had thus acted as such Executor or Executrix, Administrator or Administratrix, for any liability incurred for an unfaithful or dishonest act in regard to the assets with which such person had been entrusted, and for which, if a suit were instituted, it would charge him personally. As, however, the discharge might operate as a bar to such a suit, the Legislature having declared the effect of the discharge as to the duties, went on to declare that such discharge shall furthermore operate as a bar to any suit against the person so having acted, &c., unless the same be brought within five years from the date of such discharge ; which is equivalent to saying that it shall not bar such a suit if brought within five years from the date of the discharge. This is in “futuro,” and shews, we think, most clearly, when taken in connection with the provision as to the duties as above stated, the “ intent of the law-makers,” that the discharge should be an immediate and effectual bar to suits instituted against such parties in their fiduciary character.

Again, if a suit were brought against such party in that character, it would of course be for the non discharge of some duty as Executor or Executrix, Administrator or Administratrix; and to say such discharge shall operate as a release from those duties, and yet that the person thus released may be sued for a non discharge of any of those duties, would be a solecism; and, besides, if the party has faithfully and honestly discharged the trust and confidence reposed in him, what reason is there why he should be harrassed with such suits? We think there is none, and that it was the intention of the Legislature that he should not, and that it has in effect so said.

If the view that we have taken of this matter be correct, (and we entertain no doubt on the subject), then the Court below did not err in overruling the plaintiff’s demurrer to the fourth plea of the defendants.

We have gone more fully into the questions presented in this ease than we otherwise would have done, because they are new and important, and there is some diversity of opinion in relation to them; and because we desired if possible, in putting a construction upon this singularly framed Statute, to.give effect to every part of it, and to carry out what we believe to have been the intention of the Leg-iglature in passing it, without endangering the rights and interests of any person or persons whose cases may be brought within any of its provisions. Whether we have accomplished these objects or .not, time must determine.

The Judgment pf the Court below is affirmed with costs.

Baitzíojí, J.,

delivered the following dissenting opinion:

This case depends upon the effect to be given to a discharge by the Judge of the County Court to an Administrator, under the 5th section of the act “ in addition to an act concerning wills, &c., approved 15 Feb., 1834,” by which it is provided, “ that it shall be competent for an Executor or Administrator to receive a discharge upon application to the Judge of the County Court, provided six months’ notice of the application be given, &c. and provided, also, that it shall also appear that the said applicant has faithfully and honestly discharged the trust and confidence reposed in him, and the discharge so obtained shall be taken to operate as á release from the duties of Administrator, &c.; and shal 1 furthermore operate as a bar to any suit against the person so having acted as Executor or Administrator, unless the same be commenced within five years from the date of said discharge; saving to all persons infants, non compos, &c., who may have an interest’in said estate, two years from the time of the removal of any disabilities herein enumerated.” Duval, 188, sec. 5.

The majority of the Court in the opinion delivered, affirm the doctrine that a' discharge obtained under this act is a bar, and although in the case under consideration it was obtained on (the very day the suit of plaintiff was instituted, yet they hold a plea setting up the discharge to be conclusive and fatal to it. I cannot concur in this judgment of the Court, nor in the reasoning contained in the opinion delivered; and conceiving that important principles are involved far beyond the mere amount in controversy, have felt it a duty to record the grounds of my dissent.

The Statute under discussion, has been a subject of anxioqs study and reflection with me, especially since reading the opinion of the Court, and yet I cannot agree with the meaning given to its terms. It is perhaps my misfortune not to perceive room for construction. I find neither ambiguity nor obscurity in any part of the act. The terms are of common use, and as well understood as any in the Ian-guage ; nor do I discover from the opinion delivered, either word or sentence which is asserted to be susceptible of a diversity of meaning. If this be the case, construction is inadmissible interpretation which seeks to attain the meaning of the words, and thereby find out the design of the Legislature, is the true and only guide. Lieber, in Ms work on Hermeneutics, takes the distinction between the two terms not sufficiently regarded in the law-books, “ construction differing from interpretation seeks to discover a design beyond that expressed by the Legislature,” and is obviously a most delicate and oftentimes a dangerous task. To declare that the Legislature meant differently to what they have expressed, and"either more or less than they have expressed by the language used, would seem to be the making, not the exposition of. a law, a repeal of the old, and enactment and substitution of a new law, — this, most clearly, is legislation, and not the exercise of judicial power. Is it not better and safer, by far more wise and accordant with our institutions, based as they are upon a system of laws, for the Courts to decline the exercise of power so questionable, and say at once the law is too ambiguous or obscure to be enforced 1 The English Courts of the present day are taking the right course and placing their decisions, in cases of construction, on grounds of the clearest propriety and most indisputable truth. “ When the legislature has used words of definite and plain import, it would be-very dangerous to put upon them á construction which would amount to holding that the legislature did not mean what it had expressed. The fittest course in all cases where the intention of the legislature is brought into question, is to adhere to the words of the statute, construing them according to'their nature and import. The most enlightened and experienced Judges have some times lamented the too frequent departure from the plain and obvious meaning of the words of the law by which a case is governed; and themselves hold it the much safer course to adhere to the words of the statute construed in their ordinary import, than to enter into any inquiry as to the supposed intentions of the parties who framed the act.” Dwarris on Stat. 703. 6 B. & C. 712. 10 ditto. 527.

“ The Judges are not to presume the intentions of the Legislature, but to collect them from the words of the law, and they have nothing to do with the policy of the law.” Dwarris, 703.

“ Recently, all the Judges, and particularly the late and present Lord Chief Justice, have manifested the strongest inclination to adhere more closely in the construction of Statutes to the words of the Act of Parliament. I have often lamented, says Lord Tenterden, that in so many instances the Courts have departed from the plain and literal construction of the Statutes relative to the settlement of the poor. Where the authorities are silent, I shall hold myself forced to construe these Acts of Parliament according to the plain and popular meaning of the words.” 2 B. & A., 522. Dwarris.

In another case, the same distinguished Judge says, the words may probably go beyond the intention; but if they do, it rests with the Legislature to malee an alteration, the duty of the Court is only to give effect to the provision.” It is safer,” said Mr. Jus. Ashurst, “ to adopt what the Legislature has actually said, than to suppose what they meant to say.” Dwarris, 707 — 8. 1 T. R., 52.

If these Courts, in the fullness of a career distinguished by singular wisdom, ability and virtue, gaining each day upon the confidence and affections of their people, have thus so clearly and evidently disavowed this doctrine in its past extent, may it not well become a Court just entering upon its weighty and responsible duties to pause before they affirm doctrines thus condemned as improper, and which may certainly be questionable in reason and good sense ?

If resort is to be had to construction, however, let us examine the rules appealed to by the majority of the Court. The first is, that “ a Statute is to be so construed that no clause, sentence or word, shall be superfluous, void or insignificant.” This rule supports the views we entertain; for, according to our conception, the decision of the Court can only be sustained by the disregard of all the words after, “ Executors or Administrators,” and by treating the words, “ unless the same be commenced within five years from the date of said discharge,” and also the saving of infants, &c., as wholly “ superfluous, void and insignificant.” These words stricken out, the decision of the Court is well supported.

The second rule relied upon, is that “ the intention of the makers is to govern, although such construction may seem to be contrary to the letter of the Statute.” Dwarris, who has written most extensively on this subject, and whose work is quoted with approbation in the English arid American Courts, says of this rule, “ it appears that the letter of a Statute may be enlarged or restrained by an equitable construction, and there are also certain cases which are of necessity by construction excepted out of Statutes. Such are cases out of the meaning of the law, and therefore held not to be within its operation, though included in the terms of it. It is principally in reference to such cases that it is said a remedial Statute shall be expounded contrary to the words — contrary to the text, &c.; in all its shapes a questionable doctrine, in its stricter sense quite inconsistent with the sounder principles of judicial interpretation, and requiring, it is apprehended, to be greatly modified before it can be at dll admitted as a rule of construction.” Dwarris, 725.

He continues, “ the determination of the Judges in Edrick’s case, is very deserving of attention. And the Judges said they ought not to make any construction against the express letter of the Statute, for nothing can so express the meaning of the makers of the Act as their own direct words — ‘ index animi sermo” Dwarris on Stat.,'725.

All Acts are to be taken by reasonable construction, and in doubt, ihl cases Judges may enlarge or restrain the construction of Acts of Parliament, according to the sense of the law-makers.” “ Beneficial Statutes have always been taken and expounded by equity ultra the strict letter, but riot, it is well and wisely said,’ contra the letter.”— Dwarris, 726.. But admitting the rule to its fullest extent, where is its application to the case under consideration ?

Still a third rule is referred to, “ that the old law, the mischief and the remedy, are to be considered, and we are to give such construction to the ne,w law as will suppress the mischief of the old and advance the remedy under the new one.”

It is first important to ascertain with accuracy and correctness the state of the old law; and here, we apprehend, the Court is in error in supposing that a discharge of the Executor by the Court of Probate was not allowed previously to this Statute. In the earliest period of legal proceedings, we find it thus described : “ The effect which arises of a just and true account is this — the Executor having well and faithfully performed his office, and made his account accordingly, ought to be acquitted and discharged from further molestation and suits, as one that has fully administered and finished his office; neither is he to be called by the ordinary to any further account.” Swinburne on Wills, 379.

And “thus the ordinary, finding the account to be true and perfect, may pronounce for the validity thereof, and so acquit the Executor so far forth as appertaineth to the Ecclesiastical Court. But this is perpetually to be observed, that the creditors to whom the 'testator did owe any thing, and the legatees, and all others having interest, are to be cited to be present at the making of the said account, otherwise the account made in their absence, (and they never called), is not prejudicial to them.” Swinburne, p. 379. And this has been the law of Florida, -also; for, at the earliest period of the Territorial Government, the common and statute laws of England of a general and not of a local nature, down to the 4th of July 1776, were declared to be of force. The law prevailing in the Ecclesiastical Courts on'the subject of Wills, Executors and Administrators, was by various English Statutes, and by recognition in the English Courts, part of the law of England, and consequently thus embraced by our statute. Preface to Swinburne on Wills. Duval, 357. Whilst the Executor was thus discharged by the court of ordinary, he was yet liable in the. common law courts and in the courts of chancery; in the former to shew that he had fully administered at the suit of a creditor, and in the latter his account was allowed to be falsified at the instance of any party interested by shewing error, mistake, &c. 2 Williams on Exors., 1213, 1239—40. 1 Story’s Equity, 509, 512. The reason for deviation in these cases from the rule as to the conclusiveness of the ordinary action of judicial tribunals, was that a creditor of the estate could not falsify the account in the court of ordinary, his remedy being held to be at common law — he could not contest the payments of the Executor or Administrator, but as to him the oath of the party was conclusive. 2 Will, on Exors., 645 — 8, 1265. 1 Story’s Eq., 509.

This was the state of the former law. The mischief pertaining to it is stated at large in the opinion of the Court, and made to consist of a “continuance of liability to suit by the Administrator ; objection to reinvestigation of his accounts, expense of counsel, and trouble and vexation of defence of suit, embarrassment, &c., from sickness, loss of vouchers,” &c.

Language so variant from that of all the authorities ancient and modern, announcing without exception, so far as I have been able to discover, the sound and salutary principle that Executors and Administrators are trustees to be held to a strict responsibility, and giving no encouragement to remissness or neglect in their accounts, has greatly surprised me. The earliest authorities agreeing with those of recent date are to the following effect:

“ Surely if it stand with reason that stewards, receivers, bailiffs, tutors, fathers, and such as have to deal for other persons, should be accountable for their stewardship, &c., with greater reason may it be maintained that an Executor should be subject to account rather than they; for they for the most part have to deal for such as be living, who may have an eye to their doings; but an Executor hath to deal for a dead person, who can neither see nor hear if his Executor deal unjustly. Again, if the Executor have well and faithfully executed his office and discharged the trust reposed in him, what should move him that he should not willingly make a due account thereof, &c. On the contrary, if he have played the unjust steward, much rather in that case ought he to be urged and compelled to make an account, that his fraud and deceit being detected he may be justly punished, and others by his punishment premonished.” Swinburne, 376.

“ The account is to be made to the Ordinary, who, therefore, not un-aptly may be termed the Executor of Executors, because he examines the account of every Executor, and the father of the fatherless, for that to poor orphans he is instead of a father.” Swinburne, 377.

To close, the door against enquiry, to prevent investigation and a suit to obtain their rights by creditors, legatees or distributees, are views as to the intention of the Legislature we conceive not lightly to be entertained. The excuse made, if a good one, would equally prevail against all investigation, and a settlement of accounts even before the Judge of Probate ,• for an Administrator may there, also, “ be put to great trouble, vexation and expense, and be prevented from settling his accounts by sickness, loss of vouchers or other casualty.” If he has faithfully arid honestly discharged the trust, and be in fact of an honest and ingenuous mind,” what reason has he to fear trouble or investigation; would he not rather invite the latter and reject, as an imputation upon his good name, a statutory provision which would screen him from it ? Can there be a question but that investigation and scrutiny, free, open, full and fair, as under the old law, are the true and best security of the officer, whilst mischief and injury are the sure and certain result of presenting to his weakness, negligence or cupidity, the temptation of an Act of the Legislature to stifle and exclude enquiry into his accounts and prevent a just responsibility for his official action 1

But let us look at the remedy which finds such favor with the Court, and which it is said is so greatly preferable to the old rule. The discharge is thus obtained: “ It shall be competent for' the Administrator to receive the same on an application to be made after six months5 notice in one of the gazettes nearest the place where the letters were granted; and provided it shall appear that the applicant has faithfully and honestly discharged the trust and confidence reposed in him.” The proceeding is not entirely exparte, but as nearly so as it could well have been made, if any notice were to be given. It is not directed to be addressed to any one, nor is a time or place fixed for the hearing, but the discharge is to be after six months’ publication. But a more material omission and objection is that there is no provision for the making and issue by any of the parties as to any distinct fact, as to payment of debts, amount of assets, or contestation of the items of the account in any respect. Nor is there provision for the trial of any such issue, and yet upon the rightful solution of all these questions depends the result whether “ the Administrator has faithfully and honestly discharged the trust and confidence reposed in him.” This material and important matter is disposed of by the lame and unsatisfactory provision — “ povided it shall appear that the applicant has faithfully discharged the trust.” If a legatee desire to contest the receipt of his legacy — a creditor the satisfaction of his demand— a distributee the alleged amount of the assets — the expenditures and disbursements — how are all these to be disposed of? The Judge of Probate is not skilled to decide intricate questions of law. According to our Constitution, the jury are judges of the fact, and there is no power given to summon one. Even his power to subpoena witnesses is questionable ; and yet rights of property to any the greatest extent are put in jeopardy and determined by a proceeding before unheard of; without any time or place fixed for the hearing; without any issues; without witnesses, without jury, and without judge. And this proceeding, so derogatory to principles of the common law the most venerated, and hitherto most sacred, is to be extended and carried beyond the provisions of the Act by construction. The Court says, “ the Legislature took care to use a term which only authorizes suits to charge them personally.” With due deference, the design of the Legislature was different from what is here stated. The statute was to relieve Executors and Administrators from responsibility in their official capacity, and did not concern with their individual or personal relations. There is no such expression in it as authorizing suits to “ charge them personally.” It speaks not of the institution of, but of the defence to a suit. But it is said that the words, “ against the person so having acted as Executor,” &c., are clear and definite, and support this idea of a charge personally. The Legislature, it seems to me, used these words as appropriate to the granting a discharge to a person who was no longer Executor or Administrator, and who yet might be liable to suit for past conduct. They could not with propriety say the discharge shall operate as a bar against such Executor, for he was out of office; but appropriately might say, as they have said, that it should operate against the person so having acted as such Executor, &e.

It is supposed to be incongruous and a solecism, to discharge these officers and release them from their duties whilst their responsibility continues; but why is it so ? Sheriffs, clerks, and other officers, are discharged from office and released from duty, and yet continue to be liable on their bonds for years afterwards. This has always been the case with Executors and Administrators, whose duties cease long before their responsibility. “ Familiar as the distinction between suits against Executors and Administrators as such, and suits to charge them personally, may be to every lawyer,” yet I confess myself wholly at a loss for the meaning of the Court in this position. Was it the design to say that they should be charged in the declaration individually, or personally, and not as Executors ? This would seem to be the rational inference. If this be true, actions then under this statute can only be brought for “ transactions arising subsequent to the death of the testator; for these are contracts of the Executor or Administrator, which charge him personally and in his individual character,” and not officially. 1 T. R. 487, 691. 4 T. R. 104. 8 Mass., 213. 3 do. 318, 190. 6 Hals., 163.

It cannot apply to the ordinary case of a suit against an Executor, because its primary object is to make the money from the estate ; and it is only on proof of misappropriation of assets by an Executor, that he is made liable personally.

It is suggested that the action for a devastavit is alluded to. This can hardly be the case ; for it is said, in case of a suit to charge the Administrator personally, “ the burden of proof is changed, the onus rests on plaintiff, and he must shew by his pleadings and proof, that at the time the discharge was granted, the defendant had not faithfully and honestly discharged his duty.” Now, in case of devasta-vit, the proof always lay on plaintiff as it does in all other actions. What change then is made ? 3 Chitty PL, 254. 1 Saund. 219, N. 8.

What then are the actions that may be maintained, and how are they to be preferred under this new rule of action ?

If the discharge by the Statute operates only as a bar personally, or to a personal action, it would seem to me that actions against the Administrator in his official character, not being embraced by its provisions, would not be barred; they remain as at common law. It is said that “ the discharge is a judgment, to which the general principles of law relating to the conclusiveness of judgments do not apply.” This, it seems to me, surrenders the whole ground ; for, if not conclusive, it cannot be a bar ; if not a judgment, and having the effect of one, there is no other position to occupy with it. How otherwise is it made to conclude the action of plaintiff and prevent recovery ? After the lapse of five years, we consider that the discharge has the full effect of a judgment, and prevents all contestation as to the Administration. The Statute, in my view creates a new remedy, providing a prospective bar to operate unless suit be commenced within five years — allows suits by persons generally against the person having acted as Executor or Administrator within five years after' his discharge ; and infants, persons beyond seas, and others, five years and two years after their disabilities are removed, to bring suits.

Whilst the decision of the Court makes the discharge an absolute bar, the opinion makes it an immediate bar and not a bar — “ a judgment of a Court of competent jurisdiction,” and yet “ not a judgment so that the general principles of law apply to it” — conclusive and not conclusive — a proceeding of a Court of Probate, yet to which «the rules of such Courts have no application for the most part, a defence to the action, and then to authorize suits against a defendant to charge him personally, and discriminating as to the person and object of the suit, — again, a proceeding which is “ to change the burden of proof. ” All this is produced by construction of a Statute which is declared highly remedial, though innovating most seriously upon common law principles. A construction, tbo, asserting that the intention is to govern against the letter, yet maintaining the letter against the intention; and declaring a mischief under the old law, whilst it creates a greater mischief under the new remedy.

A decision supported by such a'contrariety of positions, leaving thé subject in such uncertainty and obscurity, being so clearly in opposition to the manifest and unequivocal expressions of the Statute, can scarcely prevail as a permanent rule of action. -

By the Constitution of the State, the Judges of Probate are confined to the duties usually pertaining to courts of ordinary, subject to the direction and supervision of the courts of chancery. ’ It is to be hoped that this provision may correct, at least so far as action under the State Government is concerned, the evils which I apprehend may flow from this decision of the Court.  