CHARLES DEANE & another vs. GEORGE H. CALDWELL, administrator.

GRAY, C. J. Before the day at which rent is covenanted to be paid, it is in no sense a debt; it is neither debitum nor solvendum; for if the lessee is evicted before that day, it never becomes payable. Bordman v. Osborn, 23 Pick. 295. It is not within the provision of a bankrupt act, allowing "uncertain or contingent demands" to be proved against the estate of a bankrupt; because it is not an existing demand the cause of action on which depends upon a contingency, but the very existence of the demand depends upon a contingency. U. S. St. August 19, 1841, § 5. Riggin v. Magwire, 15 Wall. 549. French v. Morse, 2 Gray 111, 115. Savory v. Stocking, 4 Cush. 607. Bosler v. Kuhn, 8 W. & S. 183. Prentiss v. Kingsley, 10 Penn. St. 120. Stinemets v. Ainslie, 4 Denio, 573. South Staffordshire Railway v. Burnside, 5 Exch. 129, 139. The recent bankrupt act of the United States did not alter this rule, except by allowing, in accordance with the modern English bankrupt acts, an apportionment of rent to the day of the adjudication of bankruptcy. U. S. Rev. Sts. §§ 5067-5072. Ex parte Houghton, 1 Lowell, 554. Webb, 6 Bankr. Reg. 302. Treadwell v . Marden, 123 Mass. 390. Robson on Bankruptcy, (3d ed.) 260. A fortiori it could not be proved against the estate of a living insolvent debtor under the insolvent law of this Commonwealth, which (except in certain cases of bottomry and respondentia bonds, policies of insurance, bills of exchange and promissory notes, and sureties) allows no debts to be proved except such as are "absolutely due" at the time of the first publication of notice. Gen. Sts. c. 118, § 25. Stowell v. Richardson, 3 Allen 64. Lothrop v. Reed, 13 Allen 294.

In the case of a living bankrupt or insolvent, any liabilities which could not be proved against his estate are not discharged by his certificate, and may be afterwards enforced against him. But when the estate of a deceased person is insolvent, there is no debtor surviving, and any claims of creditors that do not ripen into debts which may be sued against the executor or administrator, or proved against the estate, before the final distribution of the assets, are wholly lost.

It is in view of this distinction, doubtless, that the statutes relating to the insolvent estates of deceased persons have not limited the right of proof against the estate to debts due at the

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day of the representation of insolvency, or of an adjudication of bankruptcy or publication of potice at the commencement of the proceedings, or at any other date before the return of the commission; but have provided, in general terms, for the appointment of commissioners "to receive and examine all claims of creditors against the estate, and to return a list of all claims laid before them, with the sum allowed on each claim;" and have enacted that "every creditor of an insolvent estate, who does not present his claim for allowance in the manner herein prescribed, shall be barred from recovering the same, unless further assets of the deceased come to the hands of the executor or administrator after the decree of distribution." Gen. Sts. c. 99, §§ 2, 21. Rev. Sts. c. 68, §§ 2, 20. St. 1784, c. 2.

It is not doubted that debts depending upon no contingency , though not payable until a future day, may be proved before the commissioners. Eaton v. Whitaker, 6 Pick. 465. Haverhill Loan & Fund Association v. Cronin, 4 Allen 141. And it has always been held that any contingent liabilities, arising out of contracts of the deceased, which become absolute debts at any time before being presented to the commissioners, may be allowed, although those which do not become absolute debts until after the return of the commission and the distribution of the estate are necessarily cut off.

In Wilby v. Phinney, 15 Mass. 116, for instance, it was held that, in this Commonwealth, an action of assumpsit, on the ground of an implied promise, would lie to recover a final balance due from one partner to another; and therefore that, when a partnership was dissolved by the death of one partner, and his estate was represented insolvent, the surviving partner, having no remedy unless he asserted his claim while the commission remained in force, was obliged to strike a balance, according to the existing state of the accounts, at the time of presenting his claim, which might fairly be considered as in the nature of a suit for the recovery of a final balance, because, as respected him, it was final; and consequently that he might prove before the commission for the amount of the balance so struck in his favor, but not on account of still outstanding debts of the partnership.

So in Harding v. Smith, 11 Pick. 478, where the deceased had given a bond to the plaintiff to pay a certain proportion of the

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expenses of supporting a third person, who was still living, and for whose support expenses were constantly arising, for which the plaintiff was chargeable, it was assumed, without dispute, that the commissioners acted rightly in making an allowance to the plaintiff for such support up to the close of their commission; and it was adjudged that no proof could be made for future expenses. And in Savage v. Winchester, 15 Gray 453, it was held that a widow, who had joined with her husband in a mortgage of her separate estate to secure a debt of his, which she had paid since his death for the purpose of exonerating her estate, had a valid legal claim, provable against his estate, which had been represented insolvent. The rule established by these decisions is clearly recognized (at least as to debts which become absolute within the period of the special statute of limitations) in the Gen. Sts. c. 99, §§ 5, 6. And see Cummings v. Thompson, 7 Met. 132; Thompson v. Thompson, 9 Price, 464 ; Read v. Blunt, 5 Sim. 567.

It follows, that in this case the plaintiff was entitled to prove for the rent which became payable by the terms of the lease, before or after the death of the intestate, up to the time when the claim was presented to the commissioners; but that he was not entitled to prove any claim for or on account of rent payable in the future. As regards the future rent, there has been no breach of the covenant in the lease, that will sustain an action either for rent or for damages. Daniels v. Newton, 114 Mass. 530.

It would seem, that the only debts which can be proved against the insolvent estate of a deceased person are legal, as distinguished from equitable debts. Under the St. of 1784, c. 2, if either party was dissatisfied with the decision of the commissioners, the claim was tried in an action at common law; and, by the later statutes, the appeal from their decision is to be either to this court or to the Superior Court, according to the amount of the claim; "and in either case it shall be tried and determined in like manner as if an action had been brought therefor by the supposed creditor against the executor or administrator;" "the supposed creditor shall file a statement in writing of his claim, setting forth briefly and distinctly all the material facts which would be necessary in a declaration for the same cause of action; and like proceedings shall be thereupon had in the pleadings,

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trial and determination of the cause, as in an action at law prosecuted in the usual manner; except that no execution shall be awarded against the executor or administrator for a debt found due to the claimant." Gen. Sts. c. 99, §§ 8, 10. Rev. Sts. c. 68, §§ 8, 10. Burns v. Fay, 14 Pick. 8. Greenwood v. McGilvray, 120 Mass. 516. It would be an anomaly to try an equitable claim upon a declaration and pleadings as at common law, and in the Superior Court, which has hardly any equity jurisdiction. Yet it is possible that this court might, under the Gen. Sts. c. 99, § 20, allow a suit in equity brought against the executor or administrator before the representation of insolvency, or even, under the general equity jurisdiction with which it is now vested by the Gen. Sts. c . 113, § 2, such a suit brought afterwards, to be prosecuted to judgment for the mere purpose of ascertaining the amount of the claim.

But it is unnecessary to pursue that inquiry at the present time, because a court of equity will not, in distributing assets among creditors, afford a lessor any further remedy on account of future rent than a court of law. King v. Malcott, 9 Hare, 692. And the same rule has been adhered to by the English courts of chancery, in the cases on which the plaintiffs rely, in distributing assets of a company among its creditors under the very sweeping provision of the St. of 25 & 26 Vict. c. 89, § 158, which enacts that, "in the event of any company being wound up under this act, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof against the company, a just estimate being made, so far as is possible, of the value of all such debts or claims as may be subject to any contingency, or sound only in damages, or for some other reason do not bear a certain value;" although the courts, under that statute, have declined to grant an application of a company to be wound up, and its assets distributed among its stockholders, without paying or giving security for such claims. In re Haytor Granite Co. L. R. 1 Eq. 11, and L. R. 1 Ch. 77. In re London & Colonial Co. L. R. 5 Eq. 561. In re Telegraph Construction Co. L. R. 10 Eq. 384.

The recovery in the action against the administrator, not having been for the full amount of the rent reserved, but only for

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the value of his own use and occupation, did not, beyond the satisfaction so received, affect the rights or the remedies of the lessors upon the covenants of the lease. Inches v. Dickinson, 2 Allen 71. Dwight v. Mudge, 12 Gray 23.

But the surrender of the lease by the administrator, and its acceptance by the lessors, having been absolute, and not qualified by any reservation of or agreement for a right to sue the administrator or prove against the estate in case of a loss occasioned by being compelled to let the premises at a reduced rent, terminated the lease and all liability upon the covenants thereof. Randall v. Rich, 11 Mass. 494. Amory v. Kannoffsky, 117 Mass. 351.

The result is, that the case is to be referred to an assessor, to ascertain, in addition to the rent payable at the death of the intestate, the amount of rent payable up to the time of the surrender, making due deduction for the sums received for use and occupation.

Judgment for the plaintiffs accordingly.