8 Watts 504 | Pa. | 1839
The opinion of the Court was delivered by
The first and second errors assigned will be considered together, as they relate to the question, whether James Blaine had such an interest or estate in the land in controversy as was liable to be taken in execution, and sold under a judgment against him in his own right? It is admitted, that whatever interest or estate he had in the land, he derived it from the will of his father, Colonel Ephraim Blaine, which contains the following clause, to wit: “ All the residue of my estate, real and personal, I order to be sold by my executors herein to be named, or by the survivor of them; and I do hereby empower them, or the survivor of them, to convey the same in fee simple; and all the moneys arising from such sales, I do give and devise to be equally divided between my two sons, James and Robert, or to their representatives, if they or either of them should die before me: my just debts, and the legacies hereinbefore made, being first paid; and I do hereby appoint my two sons, James and Robert Blaine, and my friend David Watts, executors of this my last will and testament.” Upon the death of the testator, Mr Watts renounced his executorship; and the two sons, James Blaine, from whom the defendant derives his claim to the iand, and Robert Blaine, made probate of the will, and took out letters testamentary. The land in dispute forms a part of the residuum disposed of by the above clause. And though given to his two sons, James and Robert, yet it cannot be said to be given to them absolutely, nor even positively, as real estate. For it is only in the event of its not being wanted for the payment of the testator’s debts, that it is given to them for their own use; but whether required for the payment of the testator’s debts or not, it is given to his executors in the first place, under a direction to be sold by them, or the survivor of them, and couveited into money; so that whatever is thereby given to his two sons is given in money after the conversion shall have been made. Then according to the decisions upon this subject, this, without something more being done than appears to have been done in this case, would not give to the sons such an interest in his residuary real estate as could be taken in execution, and sold for the payment of their respective debts. But there is a further objection that appears to be insuperable, which is, that they were not to have any of the money which should arise from the sale of the land, (and consequently could have no interest in the Iand itself,) until all the testator’s debts, and the previous legacies given by him in his will, were first paid; so that it depended upon there being a surplus after the payment of the debts and the previous legacies, whether they would derive any benefit whatever from the residuary bequest. Now it appeared on the trial of the cause, that the debts were not all paid, and that the
The remaining error assigned is, that the court erred in charging the jury that the plaintiff did not acquire the interest of Ephraim Blaine, the testator, in the laud by virtue’of the sheriff’s sale made thereof, under the judgment of William Morris'obtained against the executors. We also think that the court below erred in charging the jury to this effect. This case is distinguishable from Penn v. Hamilton, 2 Watts 53, and the other cases cited on the argument in favour of the defendant. The land, in the case of Penn v. Hamilton, was not given in trust to the testator’s executors, and charged by him in their hands as a fund for the payment of his debts, as is done here. The land taken in execution there, was not intended by the testator to be held liable for the payment of his debts; it was specifically devised, and consequently was held discharged from the liens created by law merely, in favour of those debts for which judgments had been obtained against the executors after the death of the testator, but had not been prosecuted to execution with reasonable diligence, so as to keep the liens so created by law alive. Here, however, the land in question was given by-the testator in charge to his executors for the purpose of being sold by them; and out of the moneys arising therefrom, in the first place, to pay his debts and the legacies previously given in his will; thus creating and confiding to them a trust which they, by taking out letters testamentary from the register, undertook to perform and execute. In order to have discharged the trust thus undertaken by them, they ought to have sold the lands intrusted to them for the payment of the debts and legacies, within a year after the testator’s death, and to have paid the debts and legacies with the money arising there
Thus, it would appear that the plaintiff in the judgment was never paid his debt, but was desirous to recover it; and that there was such remissness on the part of the executors, as may fairly be considered a violation and abuse of their trust, in not having sold the land and applied the proceeds thereof to the payment of the debt long before it was levied on. But upon no principle, either of justice or sound policy, can it be allowed to trustees, who have at most only a contingent or resulting interest for themselves in the trust property, such as the executors had in.this instance, to claim it as long as it appears that the object of the trust remains unexecuted, and it can not, therefore, be known whether they have any certain interest therein or not. The executors, or, more properly speaking, James and Robert Blaine, who took upon themselves the offices of executors and trustees, were merely entitled to the surplus of the residuary estate, if any should remain after paying the debts and previous legacies; and it is not to be tolerated that any lapse of time should operate in their favour, so as to give them an interest, or to increase it beyond what they would have a right to upon a faithful execution of the trust, short of that which would raise a presumption of the debts and legacies having been all satisfied. It is perfectly clear, however, no such presumption can arise here, for the commencement and prosecution of the suit by Morris for his debt to judgment, and the subsequent proceedings thereon, all repel it most completely, and show that the debt still remained unpaid when the land in question was taken in execution and sold for the purpose of paying it. To hold a different doctrine might tend to encourage trustees to delay the execution of the trust as long as possible, in hopes of gaining thereby, and thus permit them to profit or take advantage of their own neglect, or worse—of their wilful abuse of the trust and confidence reposed in them.
Having shown that the executors had no positive interest in the land, it follows, as a necessary consequence, that their creditors could not set up a right for them, which they had not and could not sustain themselves. I do not wish, however, to be understood as insinuating that the default of the executors arose from design on
Judgment reversed, and a venire, de novo awarded.