Frost v. FrostFrost v. Frost
Two grounds of defence are taken by the defendant Charles Frost. First, payment j and, secondly, the statute of limitations.
The payment proved was made by this defendant to Edmund Frost, the executor, by means of a bond and mortgage executed by the former to the latter on the thirtieth day of April one thousand eight hundred and thirty ; and which was paid on the seventh day of January one thousand eight hundred and thirty-eight. If the will authorized the payment to be made through the executor or constituted him the recipient as between the defendant and the legatee or his representative, then, the payment which has been made is a good one and the defendant is not liable to pay the money a second time. The will devises to the defendant two-thirds of a farm ; and left to the executors the other third in trust for the use of William Frost, another son of the testator. These devises were made subject to an estate for life or during the widowhood of the widow. The will then directs Charles (the defendant) and the executors, on behalf of William, to pay to Stephen the legacy in question of eight hundred dollars and two legacies of one hundred dollars each to other persons. These several legacies were payable in proportion to the land devised i. e. two-thirds by Charles and one-third by the executors in behalf of William. Then follows this provision: that if Charles shall neglect or refuse to pay his proportion of the legacies, the executors are to sell as much of the land as will pay it. Here is, also, this further provision in the will that, notwithstanding the use of all the estate is given to the wife for life or during her widowhood, if she with the executors should agree to have a division of the estate made before her death, then, the executors are authorized
Now, the question presents itself, whether the executor had authority by the will to make the arrangement and to take the bond and mortgage ?
So far as the widow’s rights and interests were concerned, it is clear that he possessed the authority. On her agreeing to relinquish the farm and to allow it to be divided between her two sons (the remaindermen) it was expressly made the duty of the executor “ to act therein” and to see that something in the way of an equivalent was secured to her. Hence, that part of the bond which produces an income for her was such as his duty required him to take. So, with respect to the legacies. In case of the defendant’s “neglect or refusal” to pay his proportion of them, the executor was expressly authorized and directed to sell so much of the land as would pay it. It was optional with the defendant, as it is with every devisee, whether he would accept the devise cum onere or reject it. His objection would be a refusal within the meaning of the will; and the executor in that case would be left to exercise his power of sale. If he accept the devise (and his acceptance would be evidenced by his entry upon and use of the land as owner) and should afterwards fail to pay his proportion of the legacies when they became payable, such failure or omission would be a neglect on his part, which might, in like manner, authorize the executor to resort to a sale of the land.
The power or authority conferred on the executor in either case required a corresponding duty on his part. A duty to ascertain whether there would be a refusal by the defen
The giving of the bond and mortgage was, therefore, only a compliance with what the executor had the power to require, viz. an assurance against both the defendant’s neglect and refusal to pay. It is no objection to this mode of arranging for the payment that the money was thereby made payable to the executor. The will made it his duty to see to the payment. Had he been left to the exercise of his power of sale, the money must have come into his hands, unless the legatees, from a well founded apprehension of his insolvency and danger to the fund, had taken measures to prevent it. The giving of the bond has accomplished no more than might have been accomplished without it; and its existence deprived the legatees of no right they had to prevent the money going into the hands of the executor if they had so desired. It is true that, had the defendant paid the money directly to the legatee or his legal representative instead of paying it into the hands of the executor, it would have been a good payment; but, unfortunately, Stephen was dead and there was no legal representative of his estate at the time the money became payable. It is stated that his widow did not take out letters of administration until the second day of May one thousand eight hundred and forty.
There is no evidence of any collusion between the defendant and the executor or any want of the most entire good faith in the whole transaction; and though the money may have been lost by the subsequent insolvency and death of the executor, the loss is rather ascribable to the extraordinary power conferred on him by the will, than to any fault
But, lest I should be mistaken with regard to the effect of the payment made to the executor, I will examine the other ground of defence, viz. the lapse of time. When did the right or cause of action accrue for the recovery of this money 1 The time from which to date the right of action most favorably to the plaintiff is, the widow’s death, which occurred in the month of April one thousand eight hundred and thirty-seven. Then it was that the defendant would have been entitled, at all events, to be let into possession of his part of the farm ; and from the time of his taking possession under the will his liability to pay became fixed. This corresponds with the time of payment mentioned in the condition of the bond. We are speaking, however, of the liability irrespective of the bond and mortgage and as if those instruments had never existed.
It was a liability which attached to the person in virtue of the property devised and became binding in law as for a debt contracted. The land, also, stood charged for its payment.
And what was the remedy to be pursued by the creditor or legatee for enforcing payment 1 I mean the remedy which the courts of justice could furnish and not the. exercise of the executor’s power of sale. Doubtless, a bill in equity would have been an appropriate remedy; but this is not a subject matter over which a court of equity has or had “ peculiar and exclusive jurisdictionfor I consider that a court of law had concurrent jurisdiction by action at the suit of the legatee or his legal representative to enforce the payment of this money by judgment and execution in the usual form. Here was a devise of specific real estate charged exclusively with the payment of a sum certain. There could be no right, in any event, to look to the personal property or general assets of the estate for payment. No question could arise about marshalling assets qr the abatement of legacies. The executor’s assent was not necessary ; nor was he a proper party to any suit for its recovery. The devisee enters upon the possession and enjoys the property, assuming to be the owner to all intents and
This, then, being a case of concurrent jurisdiction in a court of law, the statutory limit of six years applies to it: 2 K S. 301, sec. 49.
The six years began in April one thousand eight hundred and thirty-seven, when the right of action, if any; arose. The right to call for payment at that time and to sue, if necessary, belonged to an administrator. The delay in taking out letters of administration by Tamer Frost, the widow, was no suspension of the right and produced no • such disability to sue as the statute recognizes. Nor is it any objection to the operation of the six years limitation that the plaintiff in this case was not in a position or condition to proceed at law for the money. A court of equity only could afford him relief such as he seeks to obtain in this action; but, still, the right existed in favor of the person legally entitled and if not insisted on and enforced within the time allowed by the statute, it became barred and the defendant’s liability extinguished as to every body. It is conceded that this action was not brought within six years of the time when the legacy became payable or of the grant of administration to the widow or of the plaintiff’s becoming of age. The statute, therefore, is a perfect protection to this defendant.
If the plaintiff, as the sole heir and next of kin of his father the legatee, has suffered pecuniary loss by the neglect or refusal of the administratrix to take proper measures in time to obtain the money in question, either from the defendant Charles Frost or from the executor or by preventing its going into the hands of the latter, he has a claim over against her, provided that, also, is not barred by the lapse of time.
I do hereby render judgment for the defendant Charles Frost, dismissing the complaint as to him, with costs. But, inasmuch as no defence has been made to this action by or on behalf of the defendant William Frost, the plaintiff is entitled to judgment against him for his (the plaintiff’s) distributive share (being two-thirds) of the one-third of eight hundred dollars which was to have been paid out of that