Clarke v. Goodrum, 61 Miss. 731

Clarke v. Goodrum

61 Miss. 731 | Miss. | 1884

Cooper, J.,

delivered the opinion of the court.

By the concealment of the will of Gibson Clarke, and the reten*737tion of the note due by himself to the testator until all action thereon was barred by limitation, Charles B. Clarke became executor de son tort and liable to be proceeded against as such by the legatees under the will of Gibson Clarke. The whole estate of the testator consisted of a note due to him by Charles B., and both the note and will were left in his custody and care by the testator when he left home to enlist in the Confederate Army. Upon the death of the testator it became the duty of Charles B. to produce the will that probate thereof might be made in the probate court. This he failed to do, and so dealt with the will and the estate as to keep the legatees in ignorance of the existence of the will and to convert to his own use the whole of the estate.. It is but just, therefore, that he should be treated as an executor, and as such charged with the amount of note due by him to the estate as he would have been charged if he had probated the will and then taken letters of administration thereof from the proper court.

Occupying- this relation to the appellees, it was his duty to disclose to them the existence of the will, and his denial of its existence when applied to by Mrs. Goodrum for information thereof relieved her from the imputation of negligence in failing to prosecute further inquiry on the information communicated to her by Mrs. Sims, one of the subscribing witnesses to the will.

By accepting the custody of the will he became trustee in an express trust as to it, by his dealing with the estate he became trustee as to it by construction.

The existence of the will was not discovered until after the death of Charles B. Clarke, and the claim was duly probated against his estate, as required by the.statute, within one year after the notice to creditors of his estate; this suspended the operation of the statute of limitations and the claim is not barred.

It is true that but for the will the whole estate of Gibson Clarke would have passed .to Mrs. Boyce, the mother of appellees, but they claim under the will and not as distributees of an intestate, and if as strangers in blood to Gibson Clarke their right as legatees would not be barred, it cannot be barred because of the fact that but for the will they would have taken as distributees, and as such would *738be barred by limitation. They do not set up any claim as distributees, and it cannot be set up for them by the executor de son tort for the purpose of defeating the claim, which they still have the right to assert.

J. D. Vertner and W. P. & J. B. Harris filed suggestions of error and the following argument in support thereof:

The bill does not seek to charge Charles B. Clarke as executor de son tort. For that purpose it should have charged him as executor. If so charged he would have been acquitted on a plea ne unques, etc., because the mere non action of a- debtor does not amount to a dealing with the estate, which would constitute him an intermeddler. He does not come within the terms of the statute. He has not “alienated or embezzled ” nor appropriated. He has refused to pay and concealed the fact of indebtedness, as is alleged. No case can be found, I submit, in which the conduct of the debtor such as that disclosed here fixed that character upon him. Tiie will was deposited with him. He did no act of an executor, no positive act of any kind. The withholding of a will is not such act. There must be a dealing with property, and refusing to pay or concealing an .indebtedness is not such act. It is the doing of acts which an executor alone could do or is authorized to do with the estate that subjects the person to be charged as executor. The conduct here charged is not of that character. It is, indeed, the very opposite of -it. The title to a share of the note is set up under the will, but it is to collect the note that the suit is brought. If the parties had -taken out letters, they must have sued on the note, and the complainant comes in to stand in the shoes of the legal representatives. We beg to be permitted to say that [here was no trust here as respects property. The bill is not predicated on a trust. If it had been filed by-alleged beneficiaries under a trust it would have failed. There was no transfer of title to any fund or property by Gibson Clarke to his uncle in his lifetime. No right accrued to complainant’s ancestress under the alleged parol trust because Gibson Clarke asserted the rights of a creditor and collected part of the note after the time of the alleged deposit of the note. Can there be such thing as a trust where no title passes and no right accrues which can be enforced? The idea of trust must therefore be dismissed. If there was a trust, there was nothing on which the will took effect. Being a will, there was no trust arising after Gibson Clarke’s death. It is perfectly obvious that if suit had been brought at any time by an authorized person on the note, Charles B. Clarke could only have claimed to have the amount reduced. The will was in his favor, not in favor of the heirs. It is plain that Charles B. Clarke took nothing after Gibson Clarke’s death. He collected no debt, he alienated no property, he embezzled nothing. Where there is no visible estate and nothing but a debt due, the conduct of the debtor in evading or concealing the debt or in denying indebtedness, the character of executor de son tort cannot be imputed. It is imputable only in order to charge for a tort, and refusal to pay is not such tort. If a party “intermeddles with the goods of the deceased, or does any act characteristic of the office of executor, he thereby makes himself what is called in law an executor of his own wrong.” 1 Hill Exrs. 224-5. We have not been able to find a case in which a debtor for such conduct has been held chargeable as executor. Our examination has extended to the text and notes to Williams on Executors.

*738 The decree is affirmed.

*739Chalmers, J., delivering the opinion of the court on the suggestions of error.

Counsel are correct in supposing that no inaction by a creditor, though prolonged until the statute of limitation bars the demand, will ever constitute such creditor an executor de son tort, and equally so in saying that the mere concealment of a will, though fraudulent, will not have that effect. It is the concurrence of the two facts here alleged and proved that constitutes the debtor an executor in his own wrong. The claim against himself was the entire estate. His note and the will disposing of it were alike deposited with him for safekeeping. He failed to produce either. He denied to those interested that there was any such note, and he *740failed during his entire life, though many years lapsed, to produce or tell of the will. Both note and "will were found and proved after his death. In the meantime, the note had become barred by lapse of time.

We hold under these circumstances that he is to be treated as executor de son iort of the estate, and to be held on the note as if he had collected it while it was still collectable, and that we- will not állow him to say that in fact he did not collect it. He collected it when it became barred in his hands. If it be true, as urged by counsel, that never before has a man under these circumstances been held to be an executor de sm tort, the obvious reply is that no case can be found where the facts were the same.

Interest at the contract rate, ten per cent., however, is only to be collected while such note was living and collectable. The Chancellor allowed it up to the decree.

Interest at ten per cent, must be computed only up to the date when by law the note itself ceased to be alive by the statute of limitation, and after that time at six. The contract rate, of course, only existed while the contract lasted. .

The question of interest was not heretofore before us.

jReversed and deoree here.