143 Pa. 201 | Pa. | 1891
Opinion,
This was a scire facias on a mortgage given by the defendant Shannon to one Samuel Brown on April 1, 1871, to secure the payment of $2,500. Brown having died, his administrator, on June 19, 1875, assigned and transferred the mortgage to Josiah Kerper, Peter Fesmire and Ephraim Magargal, executors, etc., of Peter Fesmire, deceased. For reasons satisfactory to themselves, the custody and possession of the mortgage papers was entrusted to Kerper, one of the executors, who collected the interest as it fell due, until April 1, 1882, at which time the mortgagor paid the principal of the mortgage to Kerper, who thereupon, in his capacity as executor, entered satisfaction of the mortgage on the record and delivered up the mortgage papers to Shannon. In 1886, four years after the payment and satisfaction of the mortgage, the present writ of scire facias on the mortgage was issued by the executors of Peter Fesmire, in order to compel the mortgagor to pay the mortgage debt a second time. If the law is such that the debt may be recovered a second time from the mortgagor, of course he must submit and endure the great hardship cast upon him. But it will be the duty of a court of justice to see to it that the case comes clearly within the operation of some plain and imperative legal duty resting upon the defendant, before a result so harsh and oppressive shall be upheld and enforced.
It has always been the law, and is not at all disputed, that co-executors are regarded as an individual person ; that they possess full power and control over the personal assets of their testator; that the act of any one of them in disposing of the assets is the act of all and binds all, and that one of them may release a debt which has been paid to him in good faith by a
As the mortgage debt in this case was paid to one of the executors of Peter Fesmire, who thereupon in his capacity of acting executor, released the debt and satisfied the record, the payment was prima facie a good payment and discharged the debt. But the appellees rely upon another principle, under which they contend that the debt was not discharged, and that is, that as to this particular debt the executors were trustees and not merely executors, and therefore a payment to one of them was not binding upon all, but must be made to all and the release must be executed by all. The doctrine as to trustees, and the distinction between their acts and those of executors, is well expressed by Hare, P. J., in an opinion adopted by this court in the case of De Haven v. Williams, 80 Pa. 480, thus: “It is well settled, in general, that the acts of one go
In Bohlen’s Est., 75 Pa. 304, the present Chief Justice, in an opinion while on the Common Pleas bench, which as to this subject was adopted by this court, said: “ It may therefore safely be assumed that where stock stands upon the books of a corporation in the name of a trustee, the said corporation is bound to inquire as to the authority of the trustee to transfer said stock, before they permit such transfer to be made. This rule does not apply, however, to the case of executors and administrators transferring stock standing in the name of a decedent, for the reason that the law casts upon them the legal ownership of the personal property of such decedent. It is their duty to pay debts and make distribution amongst heirs or legatees. To do so they must convert the personalty into cash, and a transfer of stock, therefore, would be in due course of administration. It would be unreasonable to hold that a corporation, in such case, should be held to inquire whether, in point of fact, the particular stock was needed for the payment of debts or legacies..... A trustee stands upon a different footing from an executor or administrator, in regard to the transfer of stock. Administration is no part of his duties. His office is to hold and safely keep the trust funds, in accordance with the terms of the will or other instrument creating the trust. Sometimes it is to pay income to the parties entitled thereto, or to accumulate the same during a stated period. If he transfers securities, it must be in pursuance of an express authority contained in the trust itself, or by virtue
In Wood’s Appeal, supra, we further said: “An executor’s duty is not like that of a trustee, in whom property is vested, not for administration or sale, but custody and management for his cestui que trust. The party taking stock on pledge from such trustee deals with it at his peril, for there is no presumption of k right to sell it, as there is in the case of an executor: Duncan v. Jaudon, 15 Wall. 165; Shaw v. Spencer, 100 Mass. 382. ‘ The executor has the right to sell and transfer, and one who buys of him in good faith, and pays in money the price agreed upon, is not responsible for the application of the purchase money: ’ per Huntt, J., in Leitch v. Wells, 48 N. Y. 585. Letters of administration are always sufficient evidence of authority to transfer, because a sale and transfer of stock is in the line of the duty of an administrator. The powers of an executor or administrator differ from those of an ordinary trustee; the duty of the latter being custody and management, of the former, to dispose of the personal property to pay debts,” etc.
Many other authorities are to the same effect as the foregoing, and a further citation of them is quite unnecessary. Had the defendant given a mortgage to trustees for a part of the trust fund, a payment to one of them without the knowledge or consent of the others would not have been a good payment, and a release by one of them would not have discharged the debt. But such was not this case. The mortgage in suit was the private individual obligation of the defendant Shannon to the mortgagee Brown, who also was a mere private person, and it was given for the sole purpose of securing Shannon’s debt to Brown. The one, sole duty of Shannon was to pay the debt to Brown, or to the legal owner of the mortgage, at or after the time of its maturity. Brown having died, his administrators assigned the mortgage to the executors of Peter Fesmire and they were then the legal owners of the mortgage, and beyond all question were entitled in their capacity as executors to collect the money from Shannon.
It is argued for the appellees that under the will of Peter Fesmire his executors were directed to invest one third part of his estate for the use of his widow during her life, and that as
Again; the defendant had no notice of the trust and was not, by consequence of any attitude of his, subject to a duty of inquiry. The assignment was made directly by the administrator of the mortgagee Brown, to the executors of Fesmire. It was nothing but an ordinary assignment which passed the title of the assignor to the assignees, and the assignees were described-simply as “executors of the last will and testament of Peter Fesmire, deceased.” This was notice to Shannon that the assignees were executors of Fesmire, but it was notice of nothing more. If he looked, therefore, to the assignment, he
But again; if he had searched for, and found the will of Peter Fesmire, he would have found no other persons but the executors to whom he could lawfully have paid the money. There was no technical trust expressed in the will. The duties that were to be performed, in the way of investment, were duties which the executors alone and by express mention were to perform, and they were such duties as executors may properly be required to perform. They were to sell the real estate, and make deeds to the purchasers, without liability on the part of the purchasers to see to the application of the proceeds. They were not to pay over to themselves, as trustees, the money to be invested, but were to invest it themselves in their capacity as executors, and pay over the interest to the widow and other persons entitled thereto. Nor would the will have informed the defendant that the particular money represented by his mortgage was devoted to the use of the widow; for there was another investment directed to be made, also, by the executors, in favor of certain grandchildren.
We have not been referred to any authority by the learned counsel for the appellees to support their contention that a trust arose of which the defendant was bound to take notice, either generally, or because the mortgage in question was taken by Fesmire’s executors in their own right; but, on behalf of the appellants, we have been referred to several cases in which their contention appears to be sustained. Thus, in the case of Wood’s App., 92 Pa. 379, one of four executors placed in the hands of his broker certain certificates of stock belonging to the estate of his testator. These certificates were pledged as collateral security for the personal indebtedness of this individual executor, and were accompanied by a blank bill of sale and
These remarks are precisely applicable to the present case. The executor, Josiah Kerper, was clothed by the testator’s will with the absolute right to collect and receive from the defendant the mortgage debt now in suit. His co-executors had en
For the appellants, another very well considered case is cited, in close analogy to the present. It is Bogert v. Hertell, 4 Hill 493, and was a decision of the Court of Errors of New York, in which Chief Justice Nelson delivered a most elaborate and exhaustive opinion reviewing all the authorities up to that time. The testator directed his executors to make sale of such parts of his real estate as they might think proper, and disposed of the proceeds, together with his personal estate, by residuary bequests in favor of children and grandchildren, who were to receive the income during their lives and the principal to go to
The same question came before the Court of Common Pleas of Philadelphia county, No. 4, in the case of D'Invilliers v. Abbott, 4 W. N. 124, in which a very able and exhaustive opinion was filed by the learned President Judge Thayer, and it completely meets and expresses the views we entertain upon
It remains only to be added that in Fesmire’s Estate, 134 Pa. 67, we held that the two co-executors, and so far as they were concerned, co-trustees of Josiah Kerper, were not liable for this part of the fund which had been embezzled by Kerper. And this, although they had settled a joint account, charging themselves specifically with the whole of the fund for the widow’s use, although they were co-trustees in their relations with the widow, and although they had entrusted the mortgage and the collection of at least the interest to Kerper for ten years, and had not prevented him from collecting the whole of the principal. They knew all about their joint relation to the widow, and their duty to see that she received her income
Judgment reversed.