47 App. D.C. 23 | D.C. Cir. | 1917
delivered the opinion of the Court:
There is no question that, as appellants contend, the measure of their responsibility as executors in the administration of the ('state is the care, skill, and diligence of reasonably prudent men in the management of their own affairs. Glasgow v. Lipse, 117 U. S. 327, 29 L. ed. 901, 6 Sup. Ct. Rep. 757; 11 R. C. L. Exrs. & Admrs. sec. 340. But the statement-of this abstract rule of law does not aid in the solution of the question in this case, for the reason that the failure of this legatee to receive his distributive share of the estate may not he attributed to the acts of these executors in the management of the estate, hut rather is the result of their departure from settled practice in the attempted payment of that distributive share, the amount of which had been finally determined and was in their hands as executors for final distribution. Their management of the estate is not here in question. The issue is much narrower. They filed their final account, showing the payment to this legatee of the amount of his distributive share. It developed that he had not received the amount to which he was entitled. The law imposed upon these executors the duty of making that payment; and if there has been a departure by them from established and settled practice in attempting to fulfil their duty in that regard, and, as the result- of that departure, this legatee has failed to receive that which was his due, it necessarily must follow that, as between these parties, the executors must hear the loss, since as
It results from what we have said that the question whether these executors finally succeed in recovering the amount here involved from other parties is immaterial to this issue. If the failure of this distributee to receive his share of the estate is attributable primarily to any act of the executors, he may look to them alone. The success or failure of appellants, therefore, in their litigation with third parties, is immaterial here.
Section 394 of our Code [31 Stat. at L. 1251, chap. 854], entitled “Meeting of Legatees or Next of Kin,” provides that “any administrator shall be entitled to appoint a meeting of persons entitled to distributive shares or legacies or a residue, on some day by the court approved, and payment or distribution may be there made under the court’s direction and control.” This provision merely gives expression to the well-settled rule that a legacy is payable in cash, unless some other form of payment is authorized by tire person entitled. In the present case the distributee was a nonresident, and the executors, waiving their right to make payment here under the direction of the court, assumed the risk of sending the money by check to California. To absolve themselves from responsibility to the distributee it must appear that he expressly or impliedly authorized them so to act, and, unless he did, in contemplation of law the money still is in their hands ^nd they must respond to the order of the court.
In Rainwater v. Hummell 79 Iowa, 571, 44 N. W. 814, which was an action against an administrator and sureties to recover the balance of the distributive share of an heir of the testator, the administrator had tendered the amount which the probate court had ruled was the distributive share of the heir, and, the tender being refused, the administrator had deposited the money to the credit of the heir in a bank which subsequently failed. The action was brought under a statute authorizing the court, on ten days’ notice, to enter summary judgment “if the executors fail to make payment of any kind in accordance with the order of the court.” The court said: “Counsel for defend
In the case of the State ex rel. Crider v. Wagers, 47 Mo. App. 431, the probate court had ordered an executor to pay a certain sum to a nonresident. After obtaining a receipt from the distributee the executor bought a draft- from a reputable bank and sent it to the distributee, who in due course attempted to have the same collected, but whose efforts were abortive because of the failure of the bank. The court, after stating that the general rule as to the responsibility of executors and administrators was inapplicable, said: “Mrs. Crider was a nonresident of the State, and the executor was not bound to hunt her up and send her the money ordered to be paid her. lie could have obtained an order of the court to loan out the same (.Rev. Stat. sec. 252), which would have been sufficient excuse for withholding payment. But he elected to send her the money by draft, in which he was unsuccessful. If he had owed Mrs. Crider the amount of money due her, for the purchase money of property sold to him by her or for money loaned, would the sending of a draft, in the absence of a request to so send it, or an express agreement to receive the draft as payment, discharge the debt ? * * *
“The case must stand just as if the executor had never sent the draft at all. There has been no payment, nor are any facts shown in the pleadings or evidence which exonerate the executor.’’
In the present case, the executors admittedly received no authorization from this distributee to send his share to him by
Failing to show any authorization from this distributee for the sending of his share to him by check, and the sending constituting, as it did, a departure from settled practice, and resulting in the loss of that distributive share, it must be held that, as between these parties, irrespective of the question of negligence, there has been no payment, and that the decree in the lower court was fight. That decree, therefore, is affirmed, Avitli costs. Affirmed.