130 Mass. 481 | Mass. | 1881
The defendant is sued upon a probate bond, given by him as one of two executors. A judgment having been ordered for the penalty of the bond, the question before us is how much of the penalty is due in equity and good conscience, for which an execution should be awarded. Several breaches of the bond are assigned. Upon two of these, namely, the failure to file an inventory, and the failure to render an account within a year, the defendant is liable for nominal damages.
The principal question arises on an alleged breach by the defendant, in negligently permitting his co-executor Wellbroek to appropriate the personal estate of the testator to his own use, whereby it was lost. The bonds given by the two executors were several and not joint, and neither is liable for losses caused exclusively by the default of the other. In order to charge the defendant, the burden is on the plaintiff to show that, in the administration of the estate, the defendant was negligent in the performance of some duty which the law devolves upon him personally. Austin v. Moore, 7 Met. 116,124.
A mortgage due to the testator, in the State of Ohio, which by his will the executors were authorized to collect and invest as they might judge to be for the interest of the estate, was collected upon a joint release and discharge, signed by both executors, which was forwarded to the mortgagor through an express company. The money when returned by the express company was received by the co-executor Wellbroek without the defendants’ knowledge, and deposited by him in a savings bank in good standing, partly in his own name and partly in his name as
The report finds that Wellbrock had almost exclusive management of the estate; that he was a neighbor and friend of the testator, and had relations more intimate than the defendant with parties interested under the will; and that the defendant was not familiar with laws and forms of business, or with the English language, and was content to leave the business in the hands of his co-executor. It appears that the defendant accounted for all the estate which actually came into his individual possession. In their first account, which was filed, assented to by the parties in interest, and allowed, after the mortgage was collected, the executors charged themselves with the amount paid thereon; and in a few days after it was allowed, the defendant resigned his trust. Two other accounts were afterwards filed by Wellbrock, the remaining executor, which were assented to by the parties in interest, by which he charged himself with the amount collected on the Ohio mortgage.
It was the right of each executor to receive and hold the funds of the estate. Edmonds v. Crenshaw, 14 Pet. 166. Neither can be held responsible for the waste or misconduct of the other, unless there be some act or agreement, on the part of the one sought to be charged, by which the estate has gone into, or has been negligently suffered to remain in, the exclusive possession and control of the one by whose misconduct the loss occurs. Thus both were held liable in a case where money was delivered to one executor, and immediately handed over to the other, who appropriated it to his own use. Langford v. Gascoyne, 11 Ves. 333. But an executor is not held any farther than he is shown to have participated in the misappropriation. “ Merely permitting his co-executor to possess the assets, without going farther and concurring in the application of them, does not render him answerable for the receipts of his co-executor. Each executor is liable only for his own acts, and what he receives and applies, unless he joins in the direction and misapplication of the assets.” Peter v. Beverly, 10 Pet. 532, 562. Brazer v. Clark, 5 Pick. 96, 104. Sterrett's appeal, 2 Penn. 419.
In Joy v. Campbell, 1 Sch. & Lef. 328, 341, Lord Redesdale states the distinction thus: “ If a receipt be given for the mere purposes of form, then the signing will not charge the person not receiving.” “ The true question in all those cases seems to have been, whether the money was under the control of both executors. If it was so considered by the person paying the money, then the joining in the receipt by the executor who did not actually receive it, amounted to a direction to pay his co-executor ;” “he became responsible for the application of the money just as if he had received it.” In Hovey v. Blakeman, 4 Ves. 596, 608, Lord Alvanley, the Master of the Rolls, referring to the earlier rule, declared that he would not consider the fact that an executor joins in the receipt as absolutely conclusive ; and, in Scurfield v. Howes, 3 Bro. Ch. 91, he stated his dissent from' the rule, when an executor joins in signing a receipt, if it appears that he joined for conformity only. In M’Nair’s appeal, 4 Rawle, 148, 157, the Supreme Court of Pennsylvania declares that “ there is no good reason for making executors or
cited some of the authorities referred to in the opinion, and Brice v. Stokes,
But this statement of the master is too meagre and ambiguous to enable us to come to a satisfactory conclusion on this branch of the case; and, for the purpose of a fuller and clearer ascertaining and statement of the facts and circumstances relied on to charge the defendant by reason of negligence and breach of duty on his part since the original receipt and deposit of the money by Wellbroek, the case must be
Recommitted to the master.
further cited Doyle v. Blake, 2 Sch. & Lef. 230; Westley v. Clarke, 1 Eden, 357, and 1 P. Wms. 83; Churchill v. Hobson, 1 P. Wms. 241; Walker v. Symonds, 3 Swanst. 1, 64; Knight v. Plymouth, 1 Dickens, 120; Bacon v. Bacon, 5 Ves. 331; Powell v. Evans, 5 Ves. 839, 843; Towne v. Ammidown, 20 Pick. 535; Abbott v. Fisher, 124 Mass. 414; Gaultney v. Nolan, 33 Miss. 569; Williams v. Maitland, 1 Ired. Eq. 92, 106 ; Perry v. Maxwell, 2 Dev. Eq. 488; Whitted v. Webb, 2 Dev. & Bat. Eq. 442; Doud v. Sanders, Harp. Eq. 277; Thompson v. Brown, 4 Johns. Ch. 619, 628.