56 Vt. 264 | Vt. | 1883
The opinion of the court was delivered by
I. The first question is in regard to the construction to be given to that portion of the will of 'Daniel Carpenter, deceased, of whose estate the defendant is administrator de bonis non, cum testamento annexo, which relates to the bequest to the plaintiff wife. It is as follows :
“After all my lawful debts are paid, I will to my wife, ileliann Carpenter, all my property, both personal and real; but at her decease none of said property is to go to her heirs or my heirs ; but it is to be economically used at her decease in constructing a monument for us both — a family monument. I wish said monu*267 ment to be of granite, and to be surrounded and guarded by a substantial fence.
I will that in case of my wife’s second marriage my executor shall set aside four thousand dollars for the purpose of building said monument, which sum. is not to be expended for any other purpose; but' in case she does not marry and needs it all for her support she is- to have it.”
No trustee other than an executor is named to manage the property. The testator enjoins the practice of economy upon the executor in the administration of his affairs; and gives him instructions in regard to the construction of the family monument. The intention of the testator, if directed to the accomplishment of lawful purposes, is to govern in the construction of his will. That intention is to be gathered from all the provis ions of the will. The language in which it is expressed, unless ambiguous, is to receive its natural and usual meaning. If different provisions of the will apparently conflict, such construction is to be given to them as will give effect to all the provisions, unless a clear repugnancy exists between the different provisions. General language, broad enough to pass the entire property of the legacy to the legatee, may be limited in its scope and effect by other provisions of the will. Richardson v. Paige, 54 Vt. 373. In Smith v. Bell, 6 Pet. 68, it is held, Ch. J. Marshall, delivering the opinion, that the following clause in a will,
“ Also I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind and quality soever, after payment of my debts, legacies and funeral expenses, which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely; the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin,”
conveyed to the wife but a life estate, and the reversion to the son, Jesse Goodwin. The property bequeathed consisted principally of slaves. Many of the cases bearing on the subject of construing apparently repugnant portions of wills are reviewed by the learned chief justice; and the general doctrine, announced and adhered to, that the intention of the testator, if ascertainable from the language of the will, when applied to his circumstances
II. Another contention is, whether the defendant is to account for the one thousand dollars lost through Dr. Eichardson. The main facts bearing upon this contention are, that Dr. Eichardson formerly resided at Montpelier, and was a man of good repute, both financially and as a man; that he was named by the testator as his executor and duly qualified and acted for several years, but removed to Winona, Minnesota, whereupon he resigned and the defendant was appointed administrator de bonis. When he settled his account he passed over to the defendant a note for $1,900, secured by mortgage on land near Winona. This was in December, 1867, and the note matured May 20th, 1870. The defendant, at once upon receiving it, placed the note in the hands of Dr. Eichardson for collection.' The money due thereon was paid to him at the maturity of the note. In the August following, Dr. Eichardson sent ’ the defendant the amount collected by him except $1,000, for which he offered to give to the defendant a good note secured by mortgage bearing twelve per cent interest. The defendant declined the note, asked for payment, preferring to invest the $1,000 East. In August, 1872, the defendant consulted Joseph A.
On these facts, has the defendant legally accounted for the $1,000, or shown that it was lost without his fault ? He insists that the burden is upon the orator, to show that the loss was occasioned by his fault. As a general proposition this is true. They show that he received a good note, secured by mortgage, which was paid at maturity to him, or his agent. Showing this, it is incumbent on the defendant to give a legal excuse for not having the money, received on the note; in other words, to accouut for the note, and the money collected thereon. His excuse, in substance, is, that nearly three years before it was
Sec. 444. * * * “ Or if they (trustees) place their papers and receipts in the hands of their solicitor, so that he can receive their money, and misapply it
Sec. 463. “ Trustees must personally see to it that the security is forthcoming upon parting with the money; as when they allowed their solicitor to receive the money upon representation that the mortgage was ready, and there was no mortgage, and the solicitor misapplied the money the trustees were held liable
The principles thus announced are supported by the citation of numerous authorities, as shown in the note. A brief examination of some of those cited, will show more clearly the grounds and extent of the responsibility of trustees for the negligence and misdoings of their solicitors.
In Ghost v. Waller, 9 Beav. 497, by ft marriage settlement trustees held property with power to sell and invest the proceeds for certain trusts in which the wife finally became sole cestui que trust. The wife and trustee joined in a sale of the estate but the trustee alone receipted for the purchase moneju Ho handed the conveyance to the solicitor of the wife, who completed the sale, received and retained the purchase money, which was lost by his subsequent bankruptcy. Lord Langdale, Master of the Rolls, says: “ Cases of this kind where the court has to determine which of the two innocent parties is to sustain a loss, must be attended with great hardship.” * * *' “ Here the trustees, being asked to execute the conveyance and sign the receipt, did it accordingly, and placed the conveyance in the hands of Osbaldston. By that means they enabled him to receive the purchase money.” * * * £* I am of opinion that the money which they enabled him to receive was subject to such trusts as might arise from the settlement, and that the trustees became^liable, for they authorized the payment of the money to him, instead of taking possession of it and investing it on the trust of the settlement.”
Rowland v. Witherden, 3 Macn. & G. 568. In 1838, the trustees sold some of the trust property and paid the sum realized to their solicitor to be invested on mortgage. He used the money,
Hanbury v. Kirkland, 6 Eng. Ch. (3 Sim.) 265. Trustees in a marriage settlement had power to change the securities with the consent of the wife. On her application two of tlxe trustees executed a power of attorney to the third, who with his partners was the solicitor of the wife, authorizing him to sell some stocks and invest the proceeds in a 5 per cent mortgage, which he represented he had an opportunity to do. The co-trustees gave the authority without making inquiry into the matter. The third trustee, solicitor, of the wife, sold the stocks, applied the proceeds to his own use, paid -the interest as of a 5 per cent mortgage two or three years and absconded. His co-trustees were held liable, the vice chancellor saying, “The trustees in this case have been guilty of most culpable negligence” on the ground that they had trusted to the representation of the wife and the absconding trustee without giving their personal attention to -the matter.
Bestock v. Floyer, L. R. 1 Eq. 26. The trustee, having trust funds paid inj handed them to his solicitor to invest. The solicitor was of good repute and large practice, and amongst many other offices held that of steward of the manor of Beverly Water Towns. He professed to invest the sum on a mortgage of certain copyholds of that manor, and handed the trustee a bundle of papers which showed the-investment, complete with the exception of the receipt, of the tenant of the copyhold estate mortgaged, for the money advanced. The interest was paid for ten years to the cestui'que trust through the solicitor, apparently, but really by him, when Ire died. The other facts appear
“ The case is too clear for argument; the liability of the trustee is a matter of everyday occurrence in the court. If the trustee had handed the £100 to his solicitor, and he had not invested it at all, but simply retained it for his own use,' there could bo no doubt of the trustee’s liability. It was argued, however, that the criminal act of the solicitor made a difference. Now what took place was this: the solicitor, being steward of a manor, fabricated (the act did not amount to a forgery) a surrender of actual copy-holds by an actual tenant on the rolls, but he did not give to his client a receipt for the money to secure which the surrender purported to be made, and on reference to the court rolls, the whole thing is found to be a fiction.” * * * “This is simply the case of a person employing his servant to do an act, and the servant deceiving him, and any loss so occasioned must fall on the employe.!, and not on the cestui gue trust. Of two innocent persons, therefore, one of whom must suffer by the wrongful act of the solicitor, the loss must fall on the trustee, who employed him, and did not take all the precautions he might have taken against being deceived. The fund must be replaced with interest at four per cent.” Hapgood v. Parkin, L. R. 11 Eq. 74.
The investment was made by the Solicitor of the trustee in 1857. He had an abstract of the mortgage premises to 1855. He did not require a fresh abstract, but trusted to the statement of the solicitor for the other party, that no mortgage had been placed upon the premises in the meantime.
Lord Eomilly, M. E. “ This case involves to some extent a question of very considerable importance, which broadly stated, and without qualification is shortly , this : If trustees are defrauded, and by reason of the fraud practiced upon them lose part of the trust estate, does the loss fall upon them or upon the cestui qtie trust f In Eames v. Hickson I held that, if a person obtained trust property from trustees by means of forgery the loss fell on them, and not on the cestui que trust. Here
These cases are recognized and approved in 2 Lead. Cas. Eq., part 2d, pp. 1756, 1766, 1767.
In 3 Will. Ex. (6th Am. ed.) p. 1921 (1817), the learned author states the same doctrine. lie says: “ Generally speaking, if an executor appoints another to receive the money of his testator, and he receives it, it is the same thing as if the executor himself had actually received it, and will be assets in his hands ; and consequently appointing another to receive, who will not repay, is devastavit? See authorities cited in note e. There are two authorities in that note which apparently hold that an administrator, who in good faith employs an agent in another State to collect a debt due the estate, will not be held for the appropriation by the agent of the funds collected to his own use. The case Christy v. McBride, 2 Ill. 75, I have not examined. But Ragner v. Pearsall, 3 Johns. Ch. 578 there cited, was placed by Chancellor Kent upon the peculiar circumstances of the case. The executor, whose estate was attempted to be holden in his
The leading cases in Equity, supra. 1758, and Williams Ex. supra. 1923 (1819) give as the result of all the best authorities on the subject the opinion of Lord Cottenham in Clough v. Bond, 3 Myl. & Cr. 196, (S.C. 8 Sim. 594), in which he says : “ Although a personal representative, acting strictly within the line of his duty, and exercising reasonable care, and diligence, will not be responsible for the failure, or depreciation of the fund in which any part of the estate may be invested, or for the insolvency, or misconduct of any person who may have possessed it; yet if that line of duty be not strictly pursued, and any part of the property be invested by such personal representative in funds or securities not authorized, or be put within the control of persons who ought not to be intrusted with it, and a loss be thereby eventually sustained, such personal representative will be liable to make it good, however unexpected may be the result, however little likely to arise from the course adopted, and however free such conduct may be from any improper motive. Thus if he omit to sell property, when it ought to be sold, and it be afterwards lost, without any fault of his, he is liable Phillips v. Phillips. Free. C. C. 11; or if he have money
These decisions and annunciation of principles are but a fuller exemplification of what is set forth in the decisions of this court, as .the diligence, care, and prudence, which a prudent man would exercise under like circumstances. Holmes v. Bridgman, 37 Vt. 28; Spaulding v. Wakefield's Est. 53 Vt. 660; Barney v. Parsons, 54 Vt. 623. They require the personal attention, and active intervention of an executor in the possession, protection, security, collection, and management of the estate. The result most favorable to the defendant, to be deduced is that an executor cannot turn the discharge of any of his duties in that behalf over to third persons, except from •actual necessity, without making himself liable for their negligence, misconduct, and misapplication of any part' of the estate, by which a loss results to the estate, and when an actual necessity arises for the employment of another, he is bound to select and use the best accredited agencies, and to use vigilance, and prudence in selecting the agency to be used, and make the selection at the time
But it is said', in argument by the defendant’s counsel, that this court is not inclined to hold trustees to the full measure of liability established by the courts of England, and by most of the State courts of last resort, and in evidence of this contention he cites the decision of this court in Barney v. Parsons, 54 Vt.
III. Parol evidence was properly admitted by the masters to show there were $50 less due on the Blackwell note, by reason of an unendorsed payment made to the testator, than was shown by his receipt to Richardson, with, the amount of which he was charged by the Probate Court. He was entitled, when called upon to account for the trust property which he had received from the former executor, to show by parol testimony that one of the notes received by him had been partially paid to the testator, though no endorsement of the payment had been made, and for that reason he could not,realize the face value of the note. The correctness of the record of the Probate Court -was not involved in the trial of this issue, nor did the testimony offered have a tendency to impeach that record. Admitting that reqord and his receipt to be correct, the question at issue was, how much could the defendant realize on that note, when the unendorsed payment was shown to exist ? He was to be charged with, and account for, whatever, in the exercise of due care, prudence and diligence, he could realize from the Blackwell note, and no more.
IY. Tho defendant mingled the trust estate with his own,
The decree of the Court of Chancery is reversed, as to the construction to be given to the will and as to the allowance to the defendant for services in caring for the trust property which he intermingled with his own, and is affirmed in other respects. The cause is remanded, with a corresponding mandate. ■
Bestock v. Floyer, L. R. 1 Eq. 28; Hapgood v. Perkin, L. R. 11 Eq. 74; Eaves v. Hickson, 30 Beav. 136.
Ghost v. Waller, 9 Beav. 497: Rowland v. Witherden, 8 Macn. & G. 568.
Langford v. Gascoyne, 11 Ves. 333, 252; Underwood v. Stevens, 1 Mer. 712; L. E. 7 Oil. App. 429.
Rowland v. Witherden, 3 Macn. & G. 568; Hanbury v. Kirkland, 3 Sim. 265; Broadhurst v. Balyny, 1 Y. & C. 16; Ghost v. Waller, 9 Beav. 497; 13 Beav. 336.
Challen v. Shippan, 4 Hare, 555; 13 Beav. 336.