United States v. Drennen et al.
sets for that pupose.[1] Every thing is surrendered, nothing withheld. The administrator represents the intestate; and although it is true that by means of an action and judgment de bonis testatoris, the issuing of execution thereon, and levying on and selling specific property of the deceased, unadministered, subject to execution, one creditor may obtain an advantage over another, yet this results from the favor which the law extends to the vigilant creditor. One creditor may obtain priority over another and have his debt satisfied, to the exclusion of others, who, owing to the exhaustion of property, may get nothing, or only partial satisfaction. But this is no greater hardship than may and in fact constantly does occur between the living, because one creditor, by his activity and vigilance, may clothe himself with the right of judicially appropriating sufficient property of the defendant to satisfy the debt, and which may be his entire property, thus shutting out all other claims and debts, and leaving them unpaid. It is difficult to perceive, on principle, why vigilance should not reap its appropriate and accustomed reward, as well after as before the death of the debtor.
It is insisted, that to allow the property of a deceased person to be sold on execution, would be likely to produce a sacrifice of it. But I am not able to perceive why there would be any greater sacrifice than in any ordinary judicial sale. The sale must be public, and every one would have equal opportunities of purchasing; and if the marshal was satisfied that combinations existed to produce a sacrifice, or, owing to other causes, that it would fall so far below its real value as to warrant him, in the exercise of a sound discretion, to return the property unsold for want of bidders, he might, although possibly not absolutely bound so to do, take that course, as in ordinary cases, and wait for a venditioni exponas, and under which he must sell. 3 Campbell, 521; 2 Cowen, 185; 1 Freem. Ch. R. 470. Allowing, however, the objection in its fullest force, it could not affect the question of power, and would only be a circumstance connected with its expediency, and therefore to have no controlling weight.
- ↑ Menefee v. Menefee, 3 Eng. 47, 48, decided in 1847, holds that lands and slaves are assets in the hands of the administrator for the payment of debts, and he entitled to the rents and profits and the possession thereof.
