Eppinger, Russell & Co. v. Canepa

Citations

• 20 Fla. 262

Syllabus

<p>1. Upon a bill by creditors against an executor, alleging deficiency in personal assets and insolvency, and praying a discovery of all assets, their sale and the application of the proceeds to the debts, it is erroneous to direct an execution to issue against the executor as for a clec.astmit to the extent of the estimated value of the assets in his hands subject to administration. To the extent that the assets consist of money in his hands, he should be directed to pay the same into the registry of the court; and if a sale of the real and personal property of the estate is necessary to the satisfaction of the debts proved before the master, it should be decreed. An execution against the executor should issue only for the sum with which lie is chargeable on account of losses occasioned by negligence or failure in the discharge of his duty, or like causes. It should issue then only in the event that the money and the proceeds of the sales of the property are not sufficient to satisfy the claims of the creditors. Creditors have such equities whether the estate is solvent or insolvent. It is the ordinary bill by creditors for the marshaling and administration of assets of an estate.</p> <p>2. Where the responses of the answer are as broad as the allegations and interrogatories of the bill, there is replication to the answer, and the general facts to be proved are put in issue by the pleadings, it is sufficient. Proof of a fact not specifically alleged, but embraced substantially in the case made by the answer and the bill, is admissible.</p> <p>3. Two life insurance policies, each for one thousand dollars, are taken out by A payable to. himself. He subsequently places on each policy in writing a direction to pay the money upon one policy to one person and upon the other policy gives a like direction to pay its proceeds to another person. There is no evidence that the insured at the time these contracts or this direction was given was indebted : Held, That under the