Stanley Matthews

“ The statute of Minnesota (1878, p. 826, c. 77) gives to unpaid creditors of the testator an action against the legatees, in which the plaintiff, in order to recover, is required to show that no assets were delivered by the executor or administrator of the deceased to his heirs or next of kin, or that the value of such assets has been recovered by some other creditor, or that such assets are not sufficient to satisfy the demands of the plaintiff. In the last case he can recover only the deficiency. ”

“ It is upon the ground of such a trust that the jurisdiction of courts of equity primarily rests in administration suits, and in creditors' bills brought against executors or administrators, or after distribution against legatees, for the purpose of charging them with a liability to apply the assets of the decedent to the payments of his debts. ”

“ This objection, if valid, would prevent, in all cases of the death of one of the parties, the entry of a judgment nunc pro tunc. It is the fact of such intervening death that creates the necessity by which the power is justified, in order to prevent a failure of justice, for which the other party is not responsible, and by which, therefore, he should not suffer. ”

“ It is also provided (5944, § 246) that when the accounts of the administrator or executor have been settled, and an order made for the payment of debts and distribution of the estate, no creditor whose claim was not included in the order of payment shall have any right to call upon the creditors who have been paid, or upon the heirs, devisees, or legatees, to contribute to the payment of his claim ”

“ It is insisted, however, that the relief prayed for by the bill, and awarded by the court, was barred by the proceedings of the probate court for the city and county of San Francisco. The statutes of California (Gen. Laws Cal. 1850-1864) provide that if a claim against the estate of a decedent, in course of distribution in the probate court, shall not be presented within 10 months after the first publication of the notice to creditors, it shall be barred forever ”

“ But these positions are not tenable. The administration of the estate of Gordon, in California, under the orders of the probate court of San Francisco, was merely ancillary. The primary administration was that of the testator's domicile, Minnesota. Chapman was not a citizen of California, nor resident there. He was no party to the administration proceedings. ”

“ In such cases, upon the maxim actus curice neminem gravabit, which has been well said to be founded in right and good sense, and to afford a safe and certain guide for the administration of justice, it is the duty of the court to see that the parties shall not suffer by the delay. ”

“ Snow; (4) that the complainant's debt is not barred by the statute of limitations.'
It was found by the decree that no assets of the estate of John Gordon had come into the hands of Felix A. Borer, as administrator; that on the twelfth day of January, 1869, George D. Snow, after payment of all debts, funeral expenses, legacies, and all claims owing or payable by the estate of John Gordon except the claim or debt owing to Chapman, received under the will of Gordon property belonging to said Gordon of the value of $10,777 ”