55 W. Va. 663 | W. Va. | 1904
Edwin Prince died testate in the year 1894. His will was
The defendant bank filed its demurrer and answer, averring • that tbe title to tbe Bank of Hinton stocks was not in plaintiff . as administrator de bonis non of said Edwin Prince, and that be was not entitled to tbe possession thereof, and that tbe said . stocks were administered by said Burke Prince, executor of Edwin Prince, and converted, changed and reduced to pos-r session by him in due course of administration of said estate, ; so as to completely invest him with tbe title thereto, and that tbe title thereto was now invested in tbe personal representative ■ of said Burke Prince, subject to tbe pledge thereof as collateral • security to tbe defendant, and subject to all defendant’s rights and interest therein, admitting that tbe said Burke Prince bad ■ caused tbe original certificates to be taken up and to be issued to him in bis name as executor of Edwin Prince, deceased, and ibat as executor tbe said Edwin Prince bad made his negotiable note to said Ash M. Prince, payable at said bank, which ■ note was made for the purpose of obtaining money from said ' bank by Burke Prince, executor, endorsed by said Ash M. Prince, and delivered to the bank, together with fifteen shares of the said stock as collateral, contemporaneous with the loan and payment to said Burke Prince of said $1,000; that the bank still held the said shares of stock as collateral security, which $1,000 note was renewed from time to time, the said loan being made ■ on the 21st of November, 1896. Respondent denied that said note was executed and stocks deposited as collateral for the purpose of obtaining said $1,000, or any part thereof, for the individual and personal use and benefit of said Burke Prince, . and if there was any intention on said Burke’s part to use said money for his own purposes in any manner inconsistent with his duties as executor, respondent had no knowledge or notice of it; that respondent’s understanding was that Burke Prince was acting in perfect good faith and in lawful manner with said .- stocks, and it had no notice whatever, that said Prince was
Depositions were taken and filed in the cause, and the cause • heard on the 11th of February, 1903, upon the bill and exhibits,. the defendant’s demurrer and answer, and exhibits therewith,, and general replication, and the depositions of witnesses and exhibits filed with the same, and upon the copy of the bond of" Burke Prince as executor of Edwin Prince, deceased, filed in.
It is insisted bjr appellant that tbe defendant bank could not make loans to tbe executor and receive tbe stocks as collateral, unless it bad been made to appear affirmatively that it was for tbe benefit of tbe estate. In 7 A. & B. B. L. (1st Ed.) 288, • tbe law is thus stated: “The executor or administrator having-absolute power of disposition over tbe personal effects, may sell,, pledge, or mortgage tbe assets; and, in tbe absence óf collusion^ they cannot be followed by creditors or legatees, either general or specific, into tbe bands of the alienee, nor is it incumbent: upon tbe purchaser or mortgagee to see tbe money obtained! properly applied, although be may know that be is dealing with-an executor. To establish collusion it must appear that the-purchaser or mortgagee participated in tbe devastavit, or that the sale or mortgage was made by tbe personal representative-as security for, or in payment of, bis individual debt. In the-latter case, tbe transaction itself gives tbe purchaser or mortgages notice of tbe misapplication and necessarily .involves his-participation in the devastavit Citing McCloud v. Drummond., 17 Ves. 154. And in Scott v. Tyler, 2 Dickens 712, at page 725, Lord Thurlow says: “It is of great consequence that" no rule should be laid down here which may impede executors' in their administration, or render their disposition of their testator’s effects unsafe or uncertain to tbe purchaser. His title1 is complete by sale and delivery; what becomes of tbe price is no concern to tbe purchaser; this observation applies equally to mortgages and pledges, and even to the present instance-where assignable bonds were merely pledged without assignment. It applies also, where tbe transaction is with one of many executors, for each is competent.” The only evidence tending to bring to the knowledge of the officers of tbe bank, that the-money or any part of it, was to be used by Burke Prince for bis-individual purposes and benefit, is that of Ash M. Prince, and • his testimony is excepted to as being incompetent. It is sought to prove by said Ash M. Prince that the loans of the $1.000 and the $219.69 were borrowed for Burke’s individual benefit,, and that the bank knew it. This was a transaction with Burke-
There is no error in the decree and the same is affirmed.
Affirmed.