31 W. Va. 521 | W. Va. | 1888
The most important question involved in this case is: Has an executor under any circumstances a right to recover back from a legatee an excess of advancements, which may have been made to him on a pecuniary legacy above his ratable proportion of his legacy, and, if so, under what circumstances? In England, it seems to be settled by the authorities, a legatee is not bound to refund at the suit of the executor, unless the payment by him was compulsory, or unless the deficiency was created by debts, which did not appear until after the payment of the legacy, in either of which cases the executor might compel the legatee to refund the excess paid on the legacy. See Toll. Ex’rs 341; 2 Fonbl. Eq. 376; Coppin v. Coppin, 2 P. Wms. 296; Orr v. Kaines, 2 Ves. Sr. 194. But the general spirit of the decisions in Virginia and West Virginia has relaxed much of the severity of the ancient English cases, when no fraud or misconduct is imputed to the executor. See Jones' Ex’r v. Williams, 2 Call 103, top p. 86; and Burnley v. Lambert, 1 Wash. (Va.) 312; Gallegoe’s Ex’rs v. Lambert, (Tucker’s opinion,) 3 Leigh 465.
I am therefore of the opinion that there is no inflexible rule, which refuses to an executor under any circumstances the right to recover back from a legatee an excess of advancements, which may have been made to him even when the deficiency was created by debts, which appeared before the payment of the legacy, and the payment was voluntary; but in such case the executor will have to make a very strong case to rebut the almost conclusive presumption, that he had a sufficiency of assets to justify the payment of the legacy, which arises from the mere fact, that he has paid the legacy. As an instance, where the law would permit an executor to recover, I may put the case, where the assets were apparently abundant, when the legacy was paid, but were subse
The general rule is, as laid down in English cases quoted above, and, to justify a departure from this general rule, the executor must show, that in the execution of the will he has done everything, which a prudent man ought to have done, and has done nothing, that a cautious man ought not to have done; and it will not suffice to show, that he has been guilty of no fraud but has acted 'bona fide and with honest intentions. That the English rule has not been relaxed in Virginia or West Virginia beyond what is above stated, abundantly appears from the cases of Davis v. Newman, 2 Rob. (Va.) 664; Nelson's Ex'r v. Page, 7 Grat. 160; Anderson v. Piercy, 20 W. Va. 282; and Shriver v. Garrison, 30 W. Va. 456, (4 S. E. Rep. 660).
We will now apply this law to the facts appearing in this case. The appellants claim, that William A. Morgan, the executor of Jacob Morgan, paid on the legacy to Mrs. Anne E. McEndree more than her ratable proportion ; and that in this suit the executor has a right in effect to recover it back by offsetting it against the debt of her husband, John EL McEndree. The deficiency in this case was credited by debts due from the testator, of which the executor had full knowledge, the last payment having been made on this legacy of $250.00 on May 8,1868, which was thirteen years after the qualification of William A. Morgan as executor and many years aft.er every debt of Jacob Morgan, so far as the record shows, has been presented to the executor for payment- and settled. It is therefore obvious, that under the English rule the executor would have no right to recover of the legatee any excess of payment, which he may have made on this legacy.
Is there anything, which would justify us in holding, that under the more liberal rule in this State and Virginia the executor, William A. Morgan, ought to be allowed to recover back any such excess of payment, as he may have made on this legacy to Mrs. Ann E. McEndree ? It seems to me, there is not. It is true, in making the payments on this legacy he seems to have acted bona fide and with good intention but with great imprudence and want of proper caution. In exe
Respondent attempted to sustain these statements only by the deposition of George W. Hall taken October 20,1885, who deposes as follows: “ I was present at the store, and heard the conversation between them in regard to the settlement of the estate of Jacob Morgan. Mr. McEndree claimed a settlement of the store account, and Mr. Morgan told him that he had not settled for the property, negroes, and other property he had bought at the sale, amounting to some two or three thousand dollars: don’t recollect the exact amount.
The answer of William A. Morgan further claims as follows : “ And respondent further says that he reluctantly, and only after great persuasion and entreaty, conceded to this arrangement, and after the repeated assurance of McEn-dree that it was necessary to keep said claims from being barred by the statute of limitations, and was for no other purpose, and that he would hold said bonds for no other purpose whatever, and only until a final settlement of the estate could be made. Respondent in this entire transaction, now so fully detailed, was guided by the counsel and suggestion of said John H. McEndree, who was his brother-in-law, a man of large business experience, especially in matters pertaining to the administration of estates, and was to a considerable extent, by reason of such relationship and experience, the counsellor 'and confidential adviser of respondent, then a very young man and unversed in business, in his actings as executor.”
These allegations are an effort to set aside and treat as null these transactions between the executor and John H.
William A. Morgan at that time seems to have understood the transaction differently from what the witness Hall in his deposition seems to have considered it; and the conduct of William A. Morgan is entitled to much more weight than the statement of a single witness of the substance of a conversation, made some thirty years after the conversation was held. William A. Morgan regarded the execution of his bonds to McEndree as an absolute payment of the debt due from his intestate to McEndree, for he so claimed it in his settlements of his executorial accounts; and he also regarded the purchases of McEndree, amounting to $2,576.00, as a payment on the $3,000.00 legacy to McEndree’s wife. That these were the views of William A. Morgan appears from Commissioner Cooke’s report, returned as long ago as April 20, 1861, exhibiting the transaction between him and John H. McEndree, as understood by the parties, accurately. They can not at this late date be set aside by the deposition of one single witness in reference to a conversation thirty years ago. That William A. Morgan continued to regard these transactions as represented in his settlements is shown by the fact, that as late as May 8,1863, he paid John H. McEndree $250.00 more, due to his wife on her legacy; vhich shows, that at that late date he was satisfied, that he had not over paid the legacy of Mrs. McEndree.
It would indeed require strong evidence to prove, that the executor, William A. Morgan, trusted implicitly to the creditor, John H. McEndree, in making the settlement of December 31,1855, when he gave his bonds for the debt his
Of course his claim to disregard this settlement with McEndree, made more than thirty years before, and which he as executor had carried out by obtaining on his settlement credit not only for the payment of this debt but also for payment on the legacy to McEndree’s wife of the full amount of purchase at the sale of the testator’s property by the executor, can not be allowed. But even on the evidence, which has been produced after the lapse of thirty years, it is really by no means certain, that, when this $2,576.00 was credited on Mrs. McEndree’s legacy of $3,000.00, McEndree really received more than the ratable proportion, which was due to his wife on this legacy.
The claim on the part of the counsel of William A. Morgan, that McEndree was entitled to receive but five elevenths of his legacy of $3,000.00, was, as shown by Commissioner Cooke’s settlement, based on the distribution of but two thirds of the estate, there being excluded from this distribution the one third of the personal estate bequeathed to the widow for life. Upon her death McEndree would have been entitled to his ratable share of this one third of the estate, that is to say, to one half of the amount, to which he was entitled upon the first distribution, that is to say, to five twenty seconds of his $3,000.00 legacy, that is to say, $681.80,— whereas , there was paid him then but $250.00. If the difference, $431.80, exceeds the supposed over-payment as set out in Commissioner Cooke’s report, which was $318.72, it would seem, that, when John H. McEndree receives the amount
As I understand the law, William A. Morgan as executor of Jacob Morgan ought to have paid the dividends on these stocks and the interest on these moneys, making together one third of the personal estate of Jacob Morgan, to his widow during her life and at her death accounted for the stock itself and the principal of the money as executor of Jacob Morgan. Had he done this, the controversy, which has ensued with the personal representative of John H. McEndree, as shown in this cause, never could have arisen, as William A. Morgan would not have sustained any damages, such as he has now sustained. This damage is therefore the result of gross negligence and want of proper precaution on his part and not the result of having paid to John H. McEndree more than he was entitled to.
The only other question in this cause is: Is the claim of John H. McEndree barred by the statute of limitations ? The suit is on a judgment improperly rendered against William A. Morgan as personal representative, it having been given on two bonds of his signed by him individually. This judgment was rendered by the Circuit Court of Jefferson county on November 30, 1870, and no writ of error has been
An execution issued on this judgment on December 16, 1870, returnable to March rules, 1871, was then returned, “ No property found in the hands of William A. Morgan, executor, to satisfy the within execution. March 6, 1871.” This kept the judgment alive till March 6, 1881, or for 10 years under our statute. See Code W. Va., ch. 139, § 10, p. 665. Another execution could issue on this judgment within ten years, that is, at any time prior to March, 1881. One was legally and properly issued on September 13, 1880, returnable to December rules, 1880, and under said statute, and the decisions of this Court, (see Werdenbaugh v. Reid, 20 W. Va. 588, and Shipley v. Pew, 23 W. Va. 487,) this suit to enforce this judgment would not be barred until 10 years after the returning of this last execution, that is, in December, 1890. This bill in this cause was filed at July rules, 1881, or within less than a year after the returning of the last execution ; and therefore this suit was not barred or affected by the statute of limitations.
There was therefore no error in the decrees of December 20, 1884, referring this cause to a commissioner to settle the executorial accounts of William A. Morgan, executor of Jacob Morgan, nor in the decree of June 20, 1887, confirming the commissioner’s report and decreeing that J. Garland Hurst, administrator de bonis non of John H. McEndree, deceased, should recover of said William A. Morgan the sum of $2,109.13, the amount of said judgment with interest and costs, with interest on the same from the date of said decree, June 20, 1887, till paid and his. costs. The said decrees of December 20, 1884, and of June 20, 1887, must therefore be affirmed, and appellees must recover of the appellant their costs in this Court expended and damages according to law.
Affirmed.