Diary of John Adams, volume 1
1760-10-17
What are the Questions, on which Mrs. Bracketts Bars to Danas Actions turn?—The first Question is, whether any Action at all can be maintained vs. the Administrator of an Insolvent Estate excepting for Debt due to the Crown, for sickness and funeral Charges? And the second is, whether an Action brought before the Representation of Insolvency, can be maintained, i.e. Whether an Administrator, by 163delaying to represent the Insolvency, makes herself liable to any suit, that is brought against her. For I take it to be very clear, that when an Estate is represented insolvent, as soon as an Administrator is appointed no Action can be maintained. All Actions must be barred, bar’d I mean for a Time, till the Commissioners have reported and the Average is settled. So that the only Question is, whether Administrators are liable to suits, till the Representation is made? And with submission I think
Now the Case before your Honour, is of the last sort. At the Time of Capt. Bracketts Death, it was very doubtful, with every body, whether he left enough to pay his Debts or not. His Widow, on her appointment, to the Administration, told the Judge, it was uncertain, and asked time to inform herself; and she has been as diligent as she could, considering the distressed situation of her family, in making Enquiry after the Debts. She found Effects enough in her Hands to pay all the Debts that she was apprized of, and so was unwilling to make the Representation, unwilling to put the Estate to needless Charge, and Disgrace, unwilling to put her Creditors to the Trouble of making out 164their Claims with the Commissioners, till she was satisfyd, there was not enough. But new Creditors are daily making their Appearance, who have large demands, and some who were never so civil as to let her know she owed them, have sent her Writts. She was sued in one Action to this Court for some hundreds, on a Note that she never suspected to be in Being. In short she finds most of the real Estate under Mortgage, so that most, if not all the Personal Estate must go to discharge these Mortgages, and then the real Estate must be sold at Vendue, the Event of which is quite uncertain, and therefore the Estate is not sufficient to pay. And as the Estate is insolvent, these suits must be barred. The Law is express, that No Proscess shall be allowed. And I presume the Reason, why the Law has not confined Administrators to narrow limits, is that People
The Time for Enquiry, whether the Estate is insolvent, or not, must be dilated on. It is a momentous Point. Must shew, that the time she has taken, is no more than reasonable.
The Administrator is not liable unless it can be shewn that she has intermeddled with the Goods and made payment of any Debt. She has never paid any Debt.