Marfield v. McMurdy

25 App. D.C. 342 | D.C. Cir. | 1905

Mr. Justice Morris

delivered the opinion of the Court:

There are no assignments of error by the appellant, and therefore, under a strict construction of the rules of this court, the appeal should be dismissed. But in the appellant’s brief, at the beginning of what is called the argument, there is a statement that “the questions to be determined are: (1) Is the trustee Robert II. McMurdy entitled to the sum of $600 per annum out of the income of the estate until the final distribution thereof ? (2) Should the said trustee, Robert II. McMurdy, be paid all arrearages of said compensation now existing or hereafter arising out of any excess of income now or hereafter arising or existing over the annual charges upon said estate? (3) Should the proceeds of the sale of lots 12 and 13, in block 43, now in the hands of the trustees, be distributed equally to the widow and children of the testator ?” And inasmuch as the decree appealed from itself enumerates the questions that were decided by the court below, and there is no doubt upon the record as to what questions were actually involved and what questions were decided, we think that, under the circumstances of this case, the questions so formulated may be taken as the equivalent of' formal assignments of error.

1. The first question is whether the executor, Eobert H. MeMurdy, is entitled to the sum of $600 per annum out of the income of the estate until the final distribution thereof.

The answer to this question is not difficult. The will expressly provides for such compensation. The provision is that out of the income of the estate Eobert H. McMurdy, the son of’ the testator, should receive the sum of $600 annually; that is,, the sum of $600 for each and every year during the time that he acts as executor of the will, in full compensation for his. services as such executor; and it is evident from the whole-scheme of the will that the testator contemplated that the executorship should last for several years, certainly until the death or remarriage of his widow. The argument of the appellant, in opposition to this, is that the executorship, properly so called, ceased at the termination of the period of administration, that-is, in about twelve or thirteen months after the issue of letters testamentary and the settlement of account or the lapse of the time for such settlement in the probate court; and that thereafter the appellee held the estate as trustee, with compensation,, if any, dependent upon a court of equity. But this is an argument based upon words, not upon substantial things. The executor does not cease to be executor because the period of administration, so called, may be passed. He is still executor as long' as he has anything under the will to execute. He is just as much a trustee during the period of administration as after it.. Every executor, administrator, guardian, receiver, assignee,, and other person or persons acting in a fiduciary capacity, is a trustee; and the only difference, at all events, the principal, difference, between an executor during the period of administration and an executor after the lapse of the period of administration, is that the former is responsible to the probate court for the-faithful execution of his trust, the latter to a court of equity. He is equally a trustee at both times, and equally an executor; and it is very clear from the testator’s will that, by whatever title he should be designated, the executor should have a compensation of $600 a year for each and every year during which he should continue to be engaged in the execution of the will.

It is not to the point that this construction would offer a premium to executors to strive for the indefinite prolongation of their executorship. To meet any such effort a court of equity affords abundant remedy.

If authorities are needed to sustain a proposition which seems to us to be very plain, several will be found cited in the brief for the appellee, and there are none to the contrary. See Colt v. Colt, 111 U. S. 579, 28 L. ed. 525, 4 Sup. Ct. Rep. 553; McBurney v. Carson, 99 U. S. 572, 25 L. ed. 382; Dorr v. Wainwright, 13 Pick. 328; Saunderson v. Stearns, 6 Mass. 37.

In the case of Colt v. Colt the Supreme Court of the United States said:

“The 500 shares of stock came into their hands as executors. It remained there for the general trusts of the administration ■of the estate until they were fully served. The possession of them thereafter the law imputed to them still as executors, but in trust for the special purposes to which by the will they were appropriated. There was no change of possession; there was no change of the legal title; there was but a succession of use3 according to the terms of the will. They continued to hold this stock as executors, although in trust, until its actual payment to the legatees. * * * As long as personal property is held by executors, as part of the estate of the testator, for the payment of debts or legacies or as a residuum to be distributed, they hold it by virtue of their office and are accountable for it as executors; that liability only ceases when it has been taken out of the estate of the testator and appropriated to and made the property of the cestui que trust.”

It will be found upon examination of them, although some incautious expressions are used, that the cases cited on behalf of the appellant do not at all contravene this doctrine. Take, for illustration, the case of Conner v. Ogle, 4 Md. Ch. 425, where it is said that “where the same person is both trustee and executor under a will, and settles up the personal estate in the orphans’ court, the balance, after such settlement, remains in his hands as trustee, and not as executor.” The context plainly shows that the meaning is that the executor no longer holds the property for administration in the orphans’ court, but as a trustee responsible to a court of equity. And a like explanation holds of the other cases cited. State v. Cheston, 51 Md. 377; Hanson v. Worthington, 12 Md. 418; Seegar v. State, 6 Harr. & J. 164, 14 Am. Dec. 265, and Drury v. Natick, 10 Allen, 174.

2. The appellant has divided the first question determined in the court below into two, and makes this the second of her questions: “Should the trustee be paid all the arrearages of said compensation now existing or hereafter arising out of any excess of income now or hereafter arising or existing over the annual charges upon said estate?” But the-solution of this question naturally follows the first. The same provision of the will governs both. Had the will limited the payment of executor’s annual compensation to the annual income of the estate, a different question might have been presented. Brit the provision is that out of the income generally, without any limitation, the executor should receive compensation at the rate of $600 a year. Necessarily, if the income is less in one year and greater in another, the deficiency of compensation-in one year may be made up by the excess in the other year. Willson v. Tyson, 61 Md. 575; Stewart v. Chambers, 2 Sandf. Ch. 382; Re Chauncey, 119 N. Y. 85, 7 L. R. A. 361, 23 N. E. 448; Additon v. Smith, 83 Me. 551, 22 Atl. 470; Smith v. Fellows, 131 Mass. 20; Booth v. Coulton, L. R. 5 Ch. 684; Pitt v. Dacre, L. R. 3 Ch. Div. 295.

To the contrary, on behalf of the appellant are cited the cases of Sitwell v. Bernard, 6 Ves. Jr. 520, and Casamayor v. Pearson, 8 Clark & F. 69. We do not regard either of these as adverse to the proposition above stated, and we think that a careful examination of them will so show. Without going at length into such examination here, it must suffice to say that what was held in the case of Sitwell v. Bernard was that when trustees had been ordered by the will of a testator to expend certain money in the purchase of real estate, and unexpected obstacles arose which postponed such purchase for a long time, the beneficiaries of the proposed purchase were entitled to interest on the money from the time at which it should have been invested; and that in the case of Casamayor v. Pearson it was held that where certain property was directed to be sold and the proceeds invested, and certain annuities to be paid out of the income to be derived from such investment and sale of the property, and investment of the proceeds of sale were prevented for a long time by unexpected occurrences, and afterwards such sale and investment were effected, the annuities should be paid only out of the income of the years during which there was income realized, inasmuch as there were other interests also to be provided for equally with those of the annuitants, which must have failed if the annuitants had been allowed for all the years from the beginning. This last case is a peculiar one, and depends upon its own peculiar circumstances, but it is not believed to offer any criterion for the determination of the case now before us. Here there are no provisions of the will that would fail in the event that the trustee received all the compensation that was intended for him. There may be less of income to be distributed, but that does not operate as a failure of any provision of the will.

3. The appellant’s third question is not the question that was decided by the court below. The question, as now phrased by the appellant, is whether the proceeds of sale now in the hands of the trustees should be distributed equally to the widow and children of the testator. The question formulated in the stipulation between the parties, and which the court below decided, is whether these proceeds are distributable between the two children of the testator, without any reference to the interest of the widow, which is a very different proposition. It is, perhaps, unimportant in our present consideration of the case how the question is formulated, for the answer in either event must be in the negative.

It would be a plain and palpable violation of the will to divide these proceeds of sale between the appellant and the appellee without reference to the widow’s rights. The widow is entitled to one third part of the net income of the estate during her life, or until her remarriage; and for the purpose of receiving such part she is entitled to have the estate kept intact, as indeed are each of the other parties; and she is not required to have satisfactory assurances, whatever they may be, forced upon her, instead of the provision made by the testator, as suggested by the bill of complaint. Nor should the appellee against his will be required to give such satisfactory assurances. It is too plain for argument that this question was decided rightly by the court below that further consideration of it is deemed unnecessary.

Assuming, however, that the question as now formulated by the appellant is before us for determination, we think that this question also must be answered in the negative. The appellant’s argument assumes that the codicil to the will provided for the sale of the Fourteenth street or University Park lots, and for the distribution of the proceeds of sale equally between the widow and the two children of the testator, with the reservation of two sums of $1,500 each. We do not find that it does so provide or that it repeals any portion of the will, except the item 6, for which it expressly purports to be a substitute.

The codicil is very inartificially drawn and is somewhat obscure in its terms. It is understood to have been the work of the testator himself without legal assistance, and therefore very naturally falls short of the precision which legal advice might have given him. But we find in it no provision for the sale of the Fourteenth street lots. Such provision was unnecessary. The authority had already been given by item 11 of the original will in the most ample manner. The evident purpose of the last clause of the codicil, which is supposed without warrant to give this power of sale and direction for distribution, is to provide for the application of the so-called Dayton notes, in the event that the Fourteenth street lots should not be sold before the testator’s death. It cannot reasonably be construed into a provision for the sale of these lots and a distribution of the proceeds of sale, and it was evidently not the intention of the testator anywhere, either in the will or the codicil, to direct a distribution of his estate, except to a very limited extent, before the death or remarriage of his widow.

From what we have said it follows in our opinion that the decree appealed from is right and just, and that it should be affirmed, with costs. And it is so ordered. Affirmed.