37 Mich. 176 | Mich. | 1877
In this case Camp replevied from Eberstein a reaper and horse rake, which had belonged to Henry
These facts being established and not disputed, several questions arose on the trial and some of them como up for review. The judgment below was in favor of Freeman Camp.
Upon the part of the plaintiff below there was evidence introduced by his own oath of a gift made to him by his father before death. The testimony as set' forth appears to relate to a future and not a present gift of these particular articles, and did not tend to show either a gift in prcesenti or causa mortis. No doubt it referred to the testamentary disposition afterwards made; and so far as this gift was concerned it was erroneous to consider it.
But the question still remains whether as the case was presented, the jury could lawfully have found a verdict for the defendant below.
Upon so much of the case as related to the rights of an executor, the court charged expressly that if the property was taken by Eberstein in good faith as executor, and if it was needed, or if there was any probability of its being needed for the purpose of paying debts, the taking would be justified.
Our Compiled Laws, in conformity with the common law, authorize specific legatees, with the consent of the executor, to possess their legacies before settlement, and
That an executor may originally retain possession unless otherwise ordered by the probate court under § 4353 seems to be still the rule as at common law. But propriety would dictate that where there is no probability of any occasion for the contrary, specific legacies necessary for household or husbandry purposes should be left to the legatees, as was done in this case.
It is well settled at common law as well as in equity that an executor cannot arbitrarily revoke his assent, (2 Redf. on Wills, 563, and note), and that an action at law will lie against him thereafter to recover the specific bequest. Doe v. Guy, 3 East., 120; Atkins v. Hill, 1 Cowp., 284. It was said by Lord Mansfield in the latter case that if an executor has assets he has no right to withhold his assent, and that equity will compel him to give it. The object of giving specific bequests is held to be to expedite their payment, and the courts have so acted. In Fontaine v. Tyler, 9 Price, 94, it was hold such a legacy of stocks was due at once on testator’s death; and the authorities are settled that the right to dividends and the liability to assessments begins at that time. Id.; 2 Redf. on Wills, 469, 583, 566, and cases cited.
The enforcement in equity after assent is never refused when necessary, and is in accordance with what was said by Lord Mansfield. In Chaworth v. Beech, 4 Ves., 555, where executors retained a security specifically bequeathed, without any necessity, as assets, and it depreciated, the legatee was held entitled to have the loss made good, as of its original value. The ground of this decision as stated, and as afterwards referred to in Innes v. Johnson in the same volume, on page 573, was that the executor “should have put it in the hands of the legatee.” And in Kirby v. Potter, 4 Ves., 748, 751, it is said 'by the Master of the
The facts which were undisputed showed not only assent, but — what is also important — had no tendency to show any .ground for withholding it. The court below, nevertheless, held that good faith in the executor would justify his taking, and in this certainly took extreme grounds in his favor.
In our opinion there was no testimony in the case which •could have authorized a verdict — as matter of law — in favor of the plaintiff in error, and the judgment cannot be disturbed on account of any rulings which could not have possibly changed the result; and it should be affirmed, with costs.