54 Tenn. 315 | Tenn. | 1872
delivered the opinion of the Court.
This bill is filed by complainant as one of the legatees of John Hughes, deceased, against Samuel Henderson, who qualified as the executor of the said John Hughes, after proving the will, on the 24th of January, 1861, and against John W. Miller, who, on the resignation of said Henderson, was appointed administrator de bonis non, with the will annexed, of the said John Hughes, and also against the heirs and dis-tributees of said estate.
The bill alleges that at the March term, 1861, said Henderson returned his inventory of said estate to the County Court, a copy of which is made an
The bill then charges, that sometime in the year 1865, said Miller, administrator, sold a tract of land of 640 acres in Gibson county, Tennessee, for $5,000, said Henderson being the purchaser, and that the amount of said purchase money was credited on his account against the estate.
It then charges that Miller, as administrator, had obtained a judgment, principal and interest, amounting to upwards of $8,000, against Herbert S. Ewing, administrator of Brice M. Hughes, in March, 1865, and that a part of this judgment, as complainant believes, had' been collected and paid said Henderson, in full of his claim against the estate.
It farther appears that by the 9th item of the will of John Hughes, complainant was entitled to a legacy of $4,000, to be put out at interest until the death of her husband William Harrison, who had died
She charges then that the account Henderson had rendered to the Clerk of the County Court, in the settlement of May 6,1865, which was presented by the Clerk to the Court for confirmation, is not a settlement of Samuel Henderson’s administration, but simply a one-sided account against the estate, and that said account is unjust; that it would have been settled by the testator if it had been known to exist before his death, as he was prompt in the discharge of his debts, and that a large portion of the account was barred by the statute of limitations before the death of the testator, who died about the last of the year 1860, and that the allowance of said claim, and payment of it by Miller, were illegal and void, and a fraud on legatees of the estate.
On this question the prayer of the bill is, that the said settlement of Henderson be set aside, and he be required to make a full and complete settlement, showing clearly what came to his hands, and what disbursements were made by him as executor, and that the claim of Henderson be disallowed.
The allowance of said account against the estate of John Hughes, and the effect of this settlement with the County Court Clerk, are the first questions presented for our determination.
John W. Miller was appointed his successor, and on the 10th of February, 1862, Henderson handed over to said Miller an inventory of assets of said estate, and took his receipt as follows: “Received of Samuel Henderson, executor of John Hughes, deceased, all the within described notes and papers (referring to the list in the inventory) set forth in this paper.”
It is now claimed that the settlement made in pursuance of this order, whether in 1865, or after-wards, or in 1862, when it is insisted it was commenced to be made, is conclusive as to the correctness of this claim against the estate.
But we need only look to the decree of the Court to see that the settlement was not intended to be, nor
This is the extent of said decree, and is the full extent of the power of a court in such a case, in view of all the facts found in the record. It can not be maintained that the amount of this account was a credit to be given to him as a payment, for it clearly appears that it was not paid until July, 1863, by proceeds of the sale of Gibson county land; that is, $5,000 of it, less the interest, till the payments were to fall due. Henderson is certainly estopped to insist that he had paid, by way of retainer or otherwise, the amount of this debt during his term of office as executor, by his own act in insisting on its payment by the administrator de bonis non in 1865, and the actual receipt of nearly $5,000 of this very claim.
It is not necessary, in this view of the case, to look into the question, as to whether he presented this claim to the County Court in his effort at settlement with the Clerk in 1862. If he had done so, having paid and handed over all the assets of estate to his successor in February, 1862, he could not be said to have proposed a retainer of the amount of his debt; and
It has be'en insisted in argument that until the settlement ordered by the Court was made, the appointment of his successor, John W. Miller, as administrator de bonis non, could not be made, and was therefore void. We do not think that this is the proper construction of sec. 2237 of the Code, sub-sec. 3, which provides that, after the notice required to be given, the Court shall cause the petitioner’s accounts to be settled, and may, at its discretion, accept the resignation of the petitioner, and appoint an administrator in his stead, taking from him bond, etc. We think the requirement of the settlement is an imperative direction to the Court; but that it should be made and completed before the Court shall, in exercise of its discretion, appoint the successor, is not required.
We therefore hold that the fact that this account in favor of Henderson is found as an item in the attempted settlement of his affairs as executor, in 1862, or in his last settlement with the Clerk of the County Court, and that it was confirmed by that Court, can make no difference, and that such settlement has no binding force in this case whatever.
He can only be properly allowed on his settlement such proper payments and disbursements as were actually made by him, and must be charged with all such assets as did come to his hands,* or might by reasonable diligence have come to his hands, during the term of his office.
This brings us to the next question as to an account against J. ~W. Miller, administrator de bonis non, and the propriety of allowing him a credit for said account on his settlement, as it is not pretended that he has settled his administration.
We do not think this account can be allowed, for many reasons. In the first place, on looking at it, we find the first ten or twelve items to be for board of the old man, his father-in-law, and servants, up to December 26, 1860, when he died. The proof shows that about January, 1849, the old man being owner of considerable estate, had a sale of his property, in-
This is made still stronger by the fact that Henderson, in his examination as a witness, does not dare to say that the old man ever recognized this debt, but .only, in reply to a question on the subject, answered that the old man had said, “I should never lose any thing for what I had done and was doing for him.” He says he used this expression in regard to his attention to certain law suits for him. This can only mean, taking all the circumstances of the case, that the old man intended to be liberal towards him in the disposition of his estate, which we think he has been, and so he has fairly received what he bargained for. A gratuity
Again, in looking at the account made out by Henderson, on the settlement with County Court Clerk, in November, 1865, it will be seen that interest is carefully calculated on every item for four years, four months, and six days, he not daring to claim the debts due before the death of the old man.
We look at some other charges or items in said account, and can not but feel shocked at the utter want of all sense of propriety that characterize them. Henderson seems to have been a physician, yet he charged fifty dollars for “writing four or five wills, and eight or ten codicils, and getting them witnessed.” We quote the language of the account. Surely he would not have had the hardihood to present such an account to his father-in-law in his lifetime and demand its payment. He charges interest on this, too, carefully, four years, four months, and six days. .
Another item is, “to one mare which I rode to "Virginia and lost, $150,” with the same item of interest. The history of this item is, that Henderson, a number of years ago, went to Virginia to attend to some business for his father-in-law. He says he was detained longer than he perhaps expected, and found his mare so far gone with foal, that he swapped her off, we believe in East Tennessee for another, which he rode home; after he got home he bred her to a horse, and obtained a colt from her. She then took a disease, supposed to be glanders, and died, and he modestly charges his father-in-law’s estate with her
We need not further particularize or discuss the items of this account. We dismiss it with the remark, that from all the surrounding circumstances, and the character of the items of which it is made up, we do not hesitate to pronounce it an after-thought, a fraudulent account, trumped up after death of the father-in-law, in order, if possible, to secure and absorb, as nearly all his estate as possible, at the expense of depriving John Hughes’s children of their legitimate share of their father’s estate, thus enriching himself at the expense of others, much more worthy of his bounty.
There is one item of indebtedness of the estate of John Hughes to Samuel Henderson which is not included in the above discussion, the note for $331, given January 13, 1859. Several questions are presented as to this note, the balance of the indebtedness claimed being out of the way.
First, that the executor has received, or did receive, assets of John Hughes during the term of his office sufficient to satisfy this debt, and that by force of the doctrine of retainer it is extinguished, whether in fact paid or not.
On looking at the inventory returned by Henderson, leaving out the land devised to be sold in Gibson county, we do not see clearly that there were assets, that is personal property, or choses in action, or money, received by him' while executor to discharge this debt. However, as the question is pressed on
First, as to the land in Gibson county, which the executor had power by the will to sell, we hold it clear this land was not such assets, that is, as lands, as would be subject to the doctrine of retainer. The rule can only apply to legal assets strictly, not to equitable assets, such as this land was at common law. Land even devised to be sold, specifically to pay debts, would not come within the rule, though a court of equity in such case would treat the land as money, yet being equitable assets, as contradistinguished from legal, the doctrine of retainer at common law would have no application.
The doctrine of retainer has been discussed in several cases in our own State, and we think, in some of them pushed to an unwarrantable extent, beyond what sound principle will justify. In case of Smith v. WatJdns, it. was held that a debt due an administrator was extinguished by receipt of assets of his intestate debtor, sufficient to satisfy the debt, and that such administrator could institute no suit afterwards for the recovery of such debt.
In that case, Samuel P. Watkins, the deceased, was indebted at his death to F. H. Watkins, the plaintiff in the suit, by writing obligatory, in the sum of $1,237. Samuel P. Watkins the debtor died, and made F. H. Watkins his executor, who qualified as such. The executor resigned in 1841, and Edmond Freeman was appointed administrator with the will
The whole doctrine of retainer is based on the principle of advantage or benefit to the executor or administrator, given him as compensation for the legal disability to sue for his debt. It is so treated in Williams on Executors, who says: “It is another
We admit that the early cases cited in that opinion seem to sustain the decision of the Court, on the ground that the title to so much of the property as was necessary to the payment of debts due the executor was, “by operation of the law altered and vested in himself, that is, he has them in his own right, as his own proper goods, in satisfaction of the debt, and not as executor.” This language may have been correct in its application to the eases cited from Plowden and Salkeld, but we apprehend that on examination of these cases, it will be found that the contest was
How it could have been held that the property in a slave vested absolutely in the executor as his own proper goods, in payment of his debt, we can not well
We can not approve the decision in this case. In fact, one of the cases — Page v. Patton, 5 Peters, 311— cited by the Court as sustaining these assumed doctrines of the common law, “and upholding them in all their rigor,” fails, on examination, to do so, the Court saying, p. 364, 9th Curtis’s Cond. R., “that an administrator or executor may retain the amount of his debt out of the assets in his hands is a principle which grows out of the necessity of the case. If such right did not exist, the executor or administrator would be, in many cases, without remedy. The principle was intended for his benefit, not to mislead or entrap him.” It is a right, the Court say, “which he may
But can the principle be extended so as to extinguish the right or retainer, where assets equal to the debt have been received and applied in payment of other demands? Such a rule would be contrary to reason and justice, and is not believed to be law.”
We therefore hold the sound principle to be, that in order to fix the extinguishment and payment of the debt of the executor or administrator, there must not only be a receipt of the assets or goods, but the money must be received for them, or come to his hands, as the property or goods themselves are not by our law contemplated as being subject to appropriation to payment of debts, but are to be sold, and the proceeds, when realized, so to be appropriated. Having come to his hands, that is money of his intestate or
In this view of the law, the note for $331, due January, 1859, may be contested on presentation before the Master for allowance, as a debt still claimed to exist against the estate of John Hughes, and its allowance be governed by the principle of this opinion.
The statutes of limitations of two and six years are insisted on in bar of the whole claim. As the question is directly presented in the ease, we will proceed to its decision, as far as its application might be made to the note of $331.
In case of Girdner v. Stephens; 1 Heis., in the opinion by Judge Shields, it was very decidedly main
We think the real question presented on the facts, is not whether the Convention or Legislature could revive or reinstate a right once certainly barred or extinguished by operation of the statute, but whether the suspension and closing of our courts, and cessation practically of all civil remedy for enforcement of legal rights, did not of itself operate to stop the running of the statute; or in other words, whether the statute by its fair terms and meaning applied to such a state of things, and was operative at all, while it lasted.
We turn to the Code, s. 2769, and find the language of the general statute of limitations as to personal actions to be as follows: “All civil actions, etc., shall be commenced after the cause of action has accrued, within the periods prescribed in this chapter, unless otherwise provided.” The following sections fix the periods in which “actions” shall be commenced in particular cases, the language of each section being,- “action shall be commenced” within the period therein prescribed.
The sections applicable to administrators and personal representatives, are 2279, 2280, and are as fol
What, from the language of these statutes, and from their object and purpose, (their spirit to be gathered from these two sources), was the real intention of the Legislature, and what the principle on which they rest? They all provide a period in which “ actions shall be commenced.” Does not the fair and natural exposition of this language involve the idea, that the party whose right is to be affected, shall be able to bring or commence an action? In other words, the requirement that civil actions shall be commenced within a certain period, necessarily, by the force of the language, implies that during the period mentioned and before it has expired, they may be commenced; and can it be fairly maintained that the Legislature, when it required an action to be commenced on a' note within six years, meant thereby that the bar should be operative as well when no courts were open in which an action could be commenced, as when such courts were open, and a party could commence and enforce his remedy on his cause of action? We cannot so con-
In view of this clause of the Constitution of our State, and the clause of the Constitution of the United States, s. 10, art. 1, prohibiting any State, from “passing any law impairing the obligation of contracts,” we think that if a law had been passed by the Legislature, enacting in so many words, that a man’s right to recover his ■ debt due on a contract, should be barred in six years, or any other period, notwithstanding there were no courts in operation or open in which he could bring his suit, such law would have been declared void, as violative of the provision that the courts should be open, and every man entitled to his “remedy by due course of law” for injuries done him in his lands, goods, person, or reputation.
We cheerfully concede the principle laid down in Girdner v. Stephens, 285, that a statute retrospective in its character and operation, directly affecting
In this connection, it may be proper to refer to the quotation from Cooley’s Constitutional Limitations, cited by Judge Shields in his opinion in 1 Heis., 286, as to having a vested right in a defense. It is as follows: “As to the circumstances under which a man may be said to have a vested right to a defense it
There are numerous maxims of the law that furnish a sound basis for analogous reasoning in favor of the view we have taken. It is a maxim that “that which is without remedy, avails of itself, if there be no fault in the party seeking to enforce it,” or as it is put by Lord Bacon, “that when, to preserve the principles and grounds of the law, it deprives a man of his remedy, without his own fault, it will rather put him in a better degree and condition than in a worse, for if it disable him to pursue his action, or to make his claim, sometimes it will give him the thing itself by operation of law, sometimes a more beneficial remedy: Broom’s Leg. Maxims, p. 148,
Another maxim serving to strengthen by analogy, the view we have presented is: “The law does not seek to compel a man to do that which he cannot possibly perform:” Broom, p. 167; or as the principle is stated on p. 168, “where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over, then the law will in general excusé him. We might cite many of the rules of law, that have ripened into maxims — principles so long and well established as to need no authority to sustain them in support of the reasoning of this opinion.
The principle we have maintained on this question
Yet our statute is clear and imperative, that all bills, bonds, notes, bills of exchange, and liquidated and settled accounts, signed by the debtor, shall bear interest from the time they become due, unless it is expressed that interest is not to accrue until a specified time therein mentioned. We have, as before stated, however, held unanimously in accordance with a uniform current of authorities, that interest did not accrue, and that such paper did not bear interest, notwithstanding the statute says it shall bear interest, and this not on the ground that this was an exception to the statute, but on the plain ground that it was not intended to apply to such a case, and that the intention and purpose of the law, was the law and not simply the literal words.
We might further illustrate and strengthen this view, as we think, by argument and authority, but we forbear. We only look for a moment at the hardships and injustice of adopting an opposite rule.
As a matter of course, when the bar of the statute was complete before the courts ceased to be kept open and business to be done in them, we hold that it will be effective; but before this, that is the bar completed by operation of statute, with courts open in which all suits might be commenced, the Legislature or Convention might provide, as was done, that the time from the 6th of May, 1861, should not be counted, and thus leave the party where he was when he ceased to have the means of enforcing his claim, and during such closing of the courts the statute did not run, the party not being in default for not bringing his suit, no courts being open in which it could be brought, or prosecuted if brought.
The next question presented is, as to the bequest of four thousand dollars to Mary Harrison, the com
We think it clear that this legacy bears interest from the death of the testator, as his intention certainly was that it should accumulate. The setting apart by his will shows the intention to be, that it should take this direction from that date, when the will took effect, and not be payable at the end of a year, as is the general rule in cases of pecuniary legacies.
The next question presented is, as to the sale of the tract of land of 640 acres in Gibson county. The bill insists that this sale was void, as being beyond the power of the administrator de bonis non with the will annexed. It was held in case of Armstrong, administrator, v. Parks’ devisees, 9 Hum., where the testator provided in his will “that my ex
By the Code, s. 2240, it is provided, however, that “ an administrator with the will annexed, appointed instead of an executor resigned, and all administrators with the will annexed, shall have the same power and authority as the executor had by the will of the testator, and may sell land if the executor possessed that power.” We do not think this provision interferes with or changes the principle held in the case above cited, but that it simply authorizes the administrator to sell, where the executor as such, simply by virtue of his office, and in that character alone had power to sell; but not when the party, though executor, held the two-fold character of executor and trustee, and the power to sell was confided to him as a personal trust, to be executed by him as such trustee, and not as executor. In other words, that by the
The general rule before this provision was, that the executor as such, by virtue of the power contained in the will, might dispose of the real estate of the testator for the payment of debts, the payment of legacies, or any other purpose specified in the power. But even then it was held that the power was personal, and could not be exercised by an administrator with the will annexed. See Bedfield on Wills, 3 voh, 135., and authorities cited, note 27. The statute was passed to change the latter part of this rule, and confer all the powers on the administrator by virtue of his office, that belonged to executor by virtue of his.
The provision of the will under which this land was sold is item 10: — “I do will, devise, and bequeath, that all my lands and slaves, and all the property not herein otherwise fully disposed of, be sold by my executor, and the proceeds of the sale, together with all money on hand at my death, and the proceeds of all choses in action coming to me at my death, after paying my funeral expenses, my just debts, and the costs and expenses of executing this will, and after providing for the pecuniary bequests herein named, be disposd of as follows : one-fifth to each of my children; one-fifth to be set apart in the hands of my executor, and held by him subject to the trusts &c., of the $4,000 named in the
We think it clear that the power of sale here given was to the executor as such, by virtue of his office, and that such power might be rightfully exercised by the administrator with the will annexed, under the section of the Code above referred to. We therefore hold the sale of the land was not void.
It is alleged in the bill and cross-bill filed by one of the Hugheses, that the sale of the land was fraudulent and collusive between Henderson and Miller, the administrator, and for much less than its value. This is all denied in the answer. The proof shows that it was sold in July, 1865, in the midst of the confusion incident to the termination of the war; that Henderson had failed to sell it, or as far as we can see, to attempt to do so, before this time. Perhaps no blame can attach to him for such failure; but in his answer to the cross-bill, while claiming that the sale was all fair and open, he admits that he sold the land, and as otherwise appears, probably before he left Trenton, the place of purchase, at a profit of one thousand dollars. It is also shown that the land was sold on a credit of one and two years, and that he settled his claim, which we have held unjust and iniquitous, as far as the price of the land would go, by taking a receipt from Miller as follows: “ Received of Samuel Henderson, payment in full of bid for land of five thousand dollars, on credit of one and two years, less interest
We find in the answer of Atkins, who purchased from Johnston, the vendee of Henderson, that he bought, 15th November, 1865, 284 acres of the land, at ten dollars per acre; and, in March, 1866, 164 acres more of it, at eighteen dollars per acre; and if we could look at the facts thus found as evidence against Henderson, we should feel strongly inclined to hold him and Miller accountable for whatever was the real value of the land at the time, and order an account accordingly. But we think, excluding these facts, that the fact that he bought it, and paid an unfounded and pretended debt, gotten up, as we believe, after the death of John Hughes, from fraudulent motives, that he can not be allowed to make a profit by such a transaction, and should be held to account for the price of the land on the terms of sale, that is one and two years from its date.
We further think that having got a clear title to the land, by paying for it on the basis of cash, with a fraudulent and unfounded claim, he has thus by fraud obtained the means of making the one thousand dollars profit for which he sold it, and having in addition to this, strong suspicion, that this hasty sale of the land at the end of the war, was not free from collusion, we hold that he cannot be permitted in equity to retain this money, thus fraudulently obtained, or make any profit by his fraudulent act.
We have thus gone through with the leading questions presented in this somewhat complicated case.
He will be charged with all assets he received, and has not paid over to the administrator with the will annexed, or such as might have been by him received by proper diligence, and credited with all proper payments, but will not be allowed compensation for his services during the period of his executor-ship.
That Henderson will account for the price of the land, with interest as stated in this opinion.
That Miller will be required to render an account as administrator, on the same principles as indicated against Henderson, charging him with all the assets received, or that might have been received by proper diligence, he being charged with the price of the land, unless it can be collected from Henderson.
Mrs. Harrison is not entitled to any preference over and above other specified legatees in payment of the $4,000, but is entitled to interest on the same from the time of the death of testator, or on her pro rata share if there be a deficiency of assets, so that all legacies have to abate.
Henderson and Miller will pay each, one-half the . cost of this case, both in the Court below, and in this Court.