Olmstead v. Brush, 27 Conn. 530

Olmstead v. Brush

27 Conn. 530 | Conn. | 1858

Ellsworth, J.

In deciding this ease, we have no occasion to consider the question, which was so much discussed in the argument, as to the effect, upon the rights of third parties, of a settlement of an administration account, in an action brought on the probate bond. We prefer to place our *535decision on the ground, that, in such a case as the present, no action at all will lie on the bond; though we do not mean to say or intimate that there is not another and adequate remedy. Clyde v. Simpson, 4 Ohio S. R., 445.

Assuming that the plaintiffs in interest have a well founded claim under the will of Mr. Brush, the inquiry arises, will the non-payment of the claim subject the executor and his surety to a suit on the executor’s bond ? We think it will not. The liability which is disclosed by the facts, appears to us to be one which does not affect the executor as such, but which grows out of and depends upon other and different considerations than those which determine the obligations and duties of an executor.

It must be admitted by every one, that an executor’s bond covers only the proper duties of an executor—duties which he owes to the estate he represents; which are, first, to pay the debts of the estate if there are sufficient assets, and if there are not enough, to obtain an order from the court of probate to sell real estate to supply the deficiency. Beyond this, the executor, as such, has nothing to do with the disposition of the real estate. The personal estate, as the title to it vests in himself, he may if he pleases proceed at once to sell, and with the avails pay off the debts ; but the real estate does not vest in him, and he can not sell it without an order from the probate court. When such an order is duly obtained he can make a sale conformably to it, and confer a good title upon the purchaser. This is the general duty of an executor. If there remains any personal estate after the payment of debts, and there are legacies, these legacies must be paid in full, or to the extent of the personal property ; and if there be no such property left, or not enough, then, if the legacies are charged on the real estate, the court of probate may, (since the recent statute giving the power,) make a decree, on proper application, for the sale of a sufficient quantity of it to pay the pecuniary legacies. Until this statute was passed, equity alone possessed the power. Nor can either court, at this time, exercise the power in the case of a will made before the date of the statute, unless, by the lan*536guage of the will, the legacy is made a charge on the real estate. Gridley v. Andrews, 8 Conn., 1. Clyde v. Simpson, 4 Ohio, S. R., 445. And, in any event, it is not easy to see how the executor’s bond is broken, by the executor’s not making sale of land to pay a legacy, which the judge finds has been satisfied, and for which therefore he can make no order of sale. If indeed the land be charged, and the land thus charged be given to the executor himself, we think the remedy must be in some other form than an action on the bond.

We then look at the language of the will, to ascertain who or what is charged with the payment of this legacy. Its language is, “ I give to my son Joseph the whole of my real estate, to come into his possession at the decease of my wife, and I hereby direct that the legacies herein-before named, shall be paid by my son Joseph at the decease of my wife, &c.” In Lord v. Lord, 22 Conn., 602, we held that words in a will like these—to wit: “ I will,order and directthat my nephew William M. Lord pay Sarah L. Marshall, &c.”— created a personal charge on him to pay the legacy, amounting to about $2,000, and that he should not charge the payment of it against the estate in his hands as executor. We held it to be a private personal duty, founded on his election to accept and enjoy under the will a large and ample bequest of personal and real estate. See also Clyde v. Simpson, supra.

We find in the books a class of conveyances, leases, &c., by deeds poll, in which some clause is inserted by the grantor, imposing a duty of some kind on the grantee, which, if accepted, is held to create an implied obligation that the grantee is to comply with the condition. Not that the grantee covenants to doit, for the words are. the words of the grantor, but if the grantee accepts the deed he assents to the condition in it, and becomes liable on an implied assumpsit to keep and perform it. Such is the English law as stated in Platt on Covenants, pp. 10,18. So it is held in Trustees of Hocking County v. Spencer, 7 Ohio, 493; also in Goodwin v. Gilbert, 9 Mass., 510, Burnett v. Lynch, 5 B. & C. 589, and Parish v. Whitney, 3 Gray, 516. In the last case *537the court say : “ The question is whether the clause in the deed of Putnam to Tinker creates an incumbrance upon the land. It is quite clear it is not a reservation out of the estate granted. The whole estate passed by the deed. It is not a condition upon which the estate is to be held, and for breach of which an entry might be made by the grantor. It is not declared to be a condition, nor is any right of entry reserved. It is not a covenant running with the land or otherwise. It is but a personal agreement of the grantee, made as part of the consideration of the grant and evidenced by his acceptance of the deed, which may bind him and his legal representatives, but does not affect the estate.” In Plymouth v. Carver, 16 Pick., 183, the court held that where a town granted certain land on condition that the grantee should give a bond to maintain a certain portion of the highway, and the bond was given but not kept and performed, that the obligation in the bond was not a covenant running with the land, but the land had vested absolutely. In Hinsdale v. Humphrey, 15 Conn., 434, this court held that words in a deed poll, imposing a certain duty on the grantee, which deed he had accepted, did not make him liable in covenant to perform the duty, but that he would be liable on an implied promise in assumpsit. The opinion given by Hinman, J., contains a full and able review of all the cases; and we refer to it as expressing the present views of this court. See also the cases of Thompson v. Thompson, 4 Ohio, 333, and In re McCrackens Estate, 29 Penn., 427.

We will not pursue the subject further, being satisfied that the plaintiffs in interest have mistaken their remedy. For the mere nominal breach of the bond which is claimed to have been committed, as the law is now settled, as it is not one affecting the plaintiffs, there can be no recovery for nominal damages or for costs. Taylor v. Mygatt, 25 Conn., 184.

We advise a new trial.

In this opinion the other judges concurred.

New trial advised.