Foster v. Thomas

21 Conn. 285 | Conn. | 1851

Ellsworth, J.

The particular question which has been chiefly argued at the bar, the right of an executor or administrator to sell on credit, is one of very considerable importance, and of frequent recurrence in the settlement of estates. This question we design to settle, by the present decision, if indeed there has been, at any time, a different impression in courts of probate, or among other officers of the law. What then is the duty and the power of an executor or administrator in settling an insolvent estate? Comyn says, “The office of an executor or administrator consists, principally, in the probate of the will; in the payment of debts; and the payment of, or assent to, legacies:" and on the subject of debts, Blackstone says, “whatever assets come to his hands, he may convert into ready money, to answer the demand that may be made against him; for the executor or administrator must pay the debts of the deceased.” By our statute, it is made his duty to administer upon the estate “according to law.” What then is it to administer according to law? We answer, to pay the debts due from the estate; and this he may and must do, by converting the assets into money, the only means known to the law for performing the duty. It must be done directly, by a sale for cash, and not indirectly, for something else, in exchange, by way of barter or speculation.

To do it directly, is all that is necessary, and all that is ordered; and it is the very thing that is ordered. To barter or exchange one chattel for another, or to sell for promises of future payment, is not to sell for money; and to part with the estate, upon mere personal security, however ample and satisfactory, is but a circuitous and contingent mode of raising money, open, as we think, to many and serious objections; for the estate must be settled without delay. The duty enjoined is, to sell absolutely and unqualifiedly; and this is the true measure and limit of the power delegated, whether to this or any other officer of the law, who is ordered specifically to raise money, by the sale of property. Let the order be followed implicitly, and the law is exactly satisfied; any deviation from this rule is substituting the discretion of the officer, for the precepts of the law. If the executor or administrator may go beyond this rule, and sell for anything but ready money, what is the limit of his discretion? How many changes and exchanges may he make; and how much traffic pursue, without departing from the line marked out by the law? Can a sheriff, who is directed to raise money on execution, barter and trade with the property he has levied on, or make sale of it for anything but cash in hand? Has he power, or has any agent of the law power, when he is peremptorily ordered to raise money, by the sale of property, to raise money by trafficking with it, or by pledging it, and waiting for a more convenient time to sell? Or to part with the title on promises, written or unwritten? In the case of authority derived from a power of attorney, written or verbal, or in case of any substitution of one person for another, by a voluntary act, there is, not unfrequently, considerable latitude allowed, in the exercise of a wise and just discretion; because, in such cases, we seek to learn the intention of the principal, by a fair and proper construction of the authority he has given. If the instrument given is clear and explicit in its terms, that must govern the agent; but if it is not clear and explicit, the instrument may be construed to authorize the use of customary means to accomplish the object specified. As, if a factor or broker be authorized to make sale of goods, and nothing is said in the instrument about giving credit to the purchaser, the customary credit is justly supposed to be intended and expected, by all parties concerned; but when the law specifically directs property to be sold, it means nothing more than it says: it goes no further than the language used, and a sale for cash alone satisfies that language. This then is the measure and limit of the authority given.

The court feel no disposition to relax the rule, wherever it properly applies, or to change it for one less uniform and certain, if more latitude is required, in order to avoid sacrifices in the sale of property, by executors or other officers of the law, who are ordered to sell, let an appeal be made to the persons interested, for an enlarged authority. We lay it down, as a general principle of law, that wherever a public officer is entrusted with property to sell, he is liable for its true value, if he parts with the title, without receiving the cash. If, for any reason, he cannot sell for cash, he will not be held responsible, there being on his part no fault. Let any other rule be adopted, and few cases will occur where the person accused of a breach of trust, will not be able to prove a usage or a discretionary power broad enough to screen him from all liability.

By this decision, we do not mean to declare, that executors and administrators are to be held responsible, under all circumstances, and of course, for the assets belonging to the estate they represent; but, in all cases, they are required to use due diligence in collecting and keeping the property; and they must not part with it, during administration, without first receiving the money.

This is the rule, we believe, in relation to executors and administrators, and other officers of the law, if not to general trustees having no discretionary power, which prevails in England and New-York, and most of these states. So are the cases in the books. In Pennsylvania, the rule is different. In South-Carolina, an executor is authorized to sell on credit, by the special license of the judge of probate. Whether the judge of probate in our state could, under the statute law, give such license to an executor, if he chose to do it, we have no occasion now to enquire, or to decide: he did not give it in this case, and this is decisive.

The liability of trustees and of public and private agents in England, in the instances of converting assets into money, or the safe-keeping or investing of funds, is believed to be more rigorous and stringent than in our own courts. There, unless the specific line of duty is definitely marked out, landed security, or security in public stock, is required, in their court of chancery. Ryder v. Bickerton, 3 Swanst. 80. Adye v, Feuilleteau, 1 Cox, 24. Holmes v. Dring, 2 Cox, 1. 2. Walker v. Steward, Coop. Eq. R. 6. Hardin v. Parsons, 1 Eden's Eq. R. 148. 2 Sto. Eq. § 1274. Thompson v. Brown, 4 Johns. Ch. R. 620. Crosse & ux. v. Smith, 7 East. 246. Clough v. Bond, 2 Myl. & Cra. 491. Ackerman v. Emmet, 4 Barb. 629. Gibbs v. Herring, Prec. Chan. 49. Brown’s appeal, 1 Dal. 311. McNair’s estate, 4 Rawle, 148. King v. King & al. 3 Johns. Ch. R. 552. 9 Petersd. Abr. 362. Norden v. Levit, 2 Lev. 189.

The second question made in the case, is, does the old administrator delivering over to the new administrator the note which he took on the sale to Woodworth & Curtis, constitute a good accounting or a fulfillment of this bond. On this point, we need add nothing to what we have already said. If the administrator could not make sale of the machinery to Woodworth & Curtis, for anything but money, he must, of course, remain chargeable for the property, at the inventory price, to the new administrator. That account is yet open and unsettled; and it ought regularly to be settled in the court of probate. We think, the defendant Thomas, has made the property his own, by selling it on credit; he has sold and parted with it, without any legal equivalent; and has therefore been guilty of a devastavit, according to the authorities every where. In Bac. Abr. tit. Executors and Administrators. L. 1. (Vol. 3. p. 78. Gwil. ed.) it is said, “If an executor or administrator takes an obligation, in his own name, for a debt due to the testator, this shall charge him, as much as if he had received the money; for the new security has extinguished the old right, and is quasi a payment to him.” “So if the executor sues a person by trover and conversion, in which he has a right to recover; and afterwards, he and the defendant come to an agreement, that he shall pay the executor such a sum, at a future day, and the party fails; this is a devastavit, and he shall answer ad valorem.” For this is cited Yelv. 10. 2 Lev. 189. Keil. 52. 1 Vern. 474. The last case is said to have been affirmed, on a writ of error, in the House of Lords; and a case was there cited, by the Lord Chancellor, which, he said, was adjudged when Pemberton was Chief Justice, where an executor of an obligee accepted a note drawn upon a goldsmith for the money; the goldsmith accepted the bill, and before payment, failed; the executor afterwards brought an action upon the bond, and this matter being given in evidence, it was adjudged a good payment. So in Comyn's Dig. “If the executor accept note, covenant, &c., in satisfaction of a debt, which is not paid, it is payment to him.” In Barker v. Talcott & Shaw, 1 Vern. 473. the Lord Chancellor held, that an administrator, by taking a note for a debt due the estate, made the debt his own; and that the debtor, when sued by a subsequent administrator, could plead the payment of his note to the first administrator, as a bar to the action.

We advise the superior court that the plaintiff is entitled to judgment.

In this opinion the other Judges concurred.

Judgment for plaintiff.