4 Munf. 194 | Va. | 1814
the Judges (Coulter, Cabell, and Fleming) delivered their opinions, seriatim.
In England an executor, before pro-bat, may do almost every thing which he can do afterwards,
The reason of all which is, that there an executor may undertake the trust reposed in him, as well by acts in flays, signifying his consent to do so, as by taking probat before the ¿¡rdinary; and
There, too, the probat, as well as the refusal, have relation to the death of the testator. As where administration had been committed before any will proved or notified to the ordinary,.and the administrator sold some of the goods, the executor brought detinue for these goods, and recovered them.
And a refusal shall have a like relation, so that the administrator may have an action of trespass for goods taken before administration committed.
In this country, the executor is to take an oath, and give bond and security, in every case except where by the will it is dispensed with, and there too, if the court think proper to require it. Whereas, in England,' he gave no' bond, except where a Court of Chancery, to prevent fraud, should interpose and require bond, or where the testator, by his will, made an executor conditionally, that.he put in security, and then be exec-utor.
The Statute of 10 Ann. ch. 2, sect. 12,
This latter statute
This act also provides that a failure to give security shall amount to a refusal of the executor to act.
The question is, what effect this act, together with the exception, or proviso, had on sales made by the executor thus required to give bond, and who, in fact, never did give, such bond; the act of 1785 simply continuing the power of executors before probat, as heretofore.
Under the first statute above mentioned, where the court, suspecting fraud, required security, could it have been intended that the executor, notwithstanding such requisition, might sell, give away, and waste the whole estate, and in fact commit the very fraud intended to be guarded against; s,o that there would be a dry and naked administration only to be granted ? Suppose bond- to be required in England by a Court of Chancery, would a sale, after the decree, be good, the executor never giving bond ? Must not the purchaser notice this decree, and buy at his peril But here, security is required by law, which is notice to all the world. If there are two or more executors in this country, and one refuses to give bond, and the other takes probat, can the refusing executor, who never gives bond, sell and dispose of the estate, as in England he may do ?
It appears to me that the proviso must either destroy the great objects of the law, or be itself declared void as contravening those great objects; or such a construction must be given that both can, with reason and propriety, stand.
The statute in this country most materially innovates on the common law doctrines above noticed, in one great and important point, a proper consideration of which, I think, will aid much in guiding us in this enquiry.
By the pi’oviso, he may possess himself of the goods, and proceed to execute the trust. How? By. wasting and giving away the goods ? Surely not: — such acts would not be in execution, but in fraud of the trust. Our law does not direct a sale even of perishable goods, until after probat ;
This is the only way in which I can reconcile the act to itself, and to the principles of the common law above mentioned. Either the proviso must defeat the law, or be itself defeated, or they must both receive such construction as that they may stand together. The law was intended to prevent frauds and embezzlement, and therefore ought to be construed liberally, so as to advance the remedy, and prevent the mischief. I can perceive little injury accruing, either way, under the construction now put; and if the powers of executors before probat are narrowed by it, and if estates may be injured through defect of power in the executor, it will but rarely happen ; whereas, if llieir powers should be as large as is contended for, the evils would be incalculable.
On the whole, I think the law, on the case agreed, is for the appellant; and that, therefore, the judgment of the Superior Court of law is erroneous, and must be reversed, and judgment entered for the appellant.
The question presented by the caso agreed is, whether a sale, for valuable consideration, of a slave belonging to the estate of a testator, by a person named as executor, but who never qualified by giving bond and security, is good against the executor who did qualify.
Were this case to be decided by common law principle-without regard to our act of assembly, it would not admit pf.
These principles of the common law must be applied to, and must govern this case, except so far as they may have [3gen changed by our acts of assembly. It is impossible to o j ■ r . read oUr statutes upon this subject, without being struck by one most important change. To the confidence reposed in the executor by the testator, there is superadded the necessity of giving bond and security for the faithful discharge of the duties of the office. The refusal or failure to give security is expressly declared to amount to a refusal of the ex-ecutorship ; and the court shall, thereupon, grant letters oí administration, with the will annexed, to the person to whom administration would have been granted if there had been no will.
This being a new case in this court, and of great importance, as it respects the power of an executor over his testator’s estate, before probat of the will, which seems to be governed principally by our acts of assembly, on the construction of which this controversy materially depends, I have been at considerable pains to investigate the subject; and the judges who have preceded me have gone so fully into the common law doctrine and usages in Eng
It is a well settled principle that, in the exposition of a statute, in which there appears an ambiguity, or a seeming contradiction,-we are not to garble and select any particular clause or section, but are to take the whole, and compare one clause with another, in order to discover the true meaning, intent, and policy of the legislature: and it is sometimes necessary to recur to former acts on the same subject, to aid and guide us in the discussion.
By this rule of construction, it appears to me, that the seeming conflicting.clauses in the act of 1792 may be well reconciled with each other.
The counsel for the appellee, in the case before us, in order to support the claim of his client, under a purchase of the slave in question from a nominal executor, who never qualified under the will of his testator, relied altogether on the 22d section of the act of 1792, in the following words, to' wit, “ The power of executors over their testator’s estates, before probat of the- will, is not hereby restrained, but shall continue as heretofore.” As heretofore, where 1. In Virginia, and not in England, where the most material species of our personal property is unknown to their laws, and no security is required of executors. Besides, our legislature, at the time of passing the act, must undoubtedly have pre-supposed and contemplated a subsequent qualification of the executors, by giving bond and security, taking an oath of office, &c. agreeably to the wise and salutary provisions of the act; not required by the laws of England ; which qualification never took place in the case now under consideration. The counsel, however, contended, that the said recited clause in the act of 1792, gave to the vender of the slave in question, the same powers as the common law in England gives to an executor, before probat of a will; notwithstanding the contrary provisions in our act of assembly.
To give the clause the construction contended for by Mr. Stanard, in its full latitude, would be productive of mischiefs incalculable, and totally defeat the wise and salutary objects
The clause of the act, (section 41,) making it the duty of executors and administrators “ to sell all such goods of their testator and intestate, (specific legacies excepted,) as are liable to perish, be consumed, or rendered worse by keeping,” directs it to be done, “as soon as convenient after they are qualified and why not before as well as after they are qualified ? because it was supposed that the product of the sales might be unsafe in their hands, before proper security should be given.
Although executors, in the first instance, derive their powers from the wills of their testators respectively ; yet their powers are not consummated until the requisitions of out* statute are complied with and fully performed.
In all the acts I have had recourse to on the subject, as far back as the year 1748, executors and administrators, even after qualification, are forbidden selling the slaves of their testators, or intestates, unless the other part of the personal estate (having regard to specific legacies,) shall not be sufficient for paying the debts and expenses.
It seems to me that the 22d section of the act of 1792, relied on by Mr. Stanard, may be well satisfied by allowing executors, before probat, to see to, and provide for, the decent burial of their respective testators, to pay reasonable funeral expenses, to take possession of and preserve the estates of their testators from waste and embezzlement, and to do any other act, pertaining to their office, not prohibited by the &ct of assembly s and I am the more confirmed in this opi
The above clause has been recited to shew how particular our ancestors were, a century ago, with respect to the qualifications of executors and administrators.
I am of opinion, upon the whole, that the sale of the slave Hannah in the proceedings named, by Joseph Jones, an unqualified executor of Joseph Jones the elder, deceased, to George Legg, under whom the appellee claims, was illegal and void; and that, on the case agreed, in the proceedings stated, the law is for the appellant. The judgment is therefore reversed with costs ; and this court proceeding to give such judgment as the said Superior Court ought to have rendered, it is further considered that judgment be entered for the appellant.
Office of executor, p, 34. 1
Ibid. 34,
Ibid,3v,
Office of executor, p. 35.
Ibid. 11.
Rev, Code of 1733, p. 272.
Ed. of 1743 p. 231.
Acts of sect 38- Revel Code 1st vol. p.165! ’
Office of executor, p„ 39.
1 Salk. Wentworth's of. fice of executors, ch. 3. p. 48,49. 50.
a)Eev. Code, 1st vol. 162.