41 Ala. 649 | Ala. | 1868
The decree settling the rights of the parties was rendered upon consent, without prejudice to the demurrer of appellant. This relieves us from reviewing any questions, except those raised by the demurrer. The point upon which the case turns is as to the liability of appellant, as surety on the bond of the executors of the will of Rebecca Bell, deceased; and this involves the construction of the second clause of the will, which is as follows : [See the item quoted above.] It is contended on the one hand, that the devise to the executors, with a power of sale, imposed upon them the performance of the trust as executors, and that their failure in this respect made them and their sureties liable for such failure. The other side insists, that the devise to the executors was merely a designation of persons who were to take the legal estate to the land, in trust for the uses declared, and imposed a personal trust, and not an official one; and that therefore their sureties are not liable for any default of their principals in the per
Our statutes, at tbe time the bond was given, required tbe judge of probate to take a bond, in double tbe amount of tbe value of tbe real and personal, estate,, and subjected tbe land to tbe payment of tbe debts of the decedent. Tbe executors, under tbe statute, could bold tbe land for tbe payment of debts ; and upon a sale for tbat purpose, under an order of court, they and tbeir sureties might be liable for tbe proper application of tbe proceeds. But would tbe latter be responsible, for any loss occurring from tbe acts or omissions of tbe former, in tbe execution of tbe trusts declared in tbe second clause of tbe will ? . I will proceed to notice some of tbe adjudications touching this interesting question.
In the case of Judson v. Gibbons, (5 Wendell, 228,) it appears that the will devised real and personal property to the executors, upon trust to take care and manage the same, and invest the income for the best interests of the estate, until the youngest child became of full age, and then divide the same among the children of the testator; and as to the shares of bis daughters, upon further trust during their lives. The court held, that the estate thus devised, “ at the testator’s death, belonged to the executors named as trustees, and not as executors. The executors, indeed, were entitled to it in preference, so far as it was necessary for the payment of debts; but the offices of executor and trustee are not necessarily blended.”
In Conklin v. Egerton’s Adm’r, (21 Wendell, 432,) the will empowered the executors named to sell and dispose of real estate, for the most money that could be gotten for the same, and to execute conveyances in fee simple, and to divide the money arising from tbe sale among tbe sisters, nephews, and nieces of tbe testator; the land having been devised to them in a previous clause of tbe will. Tbe question arose, whether an administrator cum testamento annexo, after tbe death of tbe executor, was authorized to execute tbe power conferred upon tbe executor, under a provision of a statute which'declared, tbat “tbe adminisr trators of such will shall have tbe rights and powers, and
The statute law of this State requires the judge of probate to take bond, in a'penalty equal, at least, to double the estimated value of the real and personal property of the estate, conditioned to perform all the duties which are, or may be, required by law as such executor or administrator.
The case last cited came again before the court of errors, and the same questions were again considered.—Vide 25 Wendell, 224.
In Holmes v. Cock, (2 Barb. Ch. 426,) it appears that the executor had fully administered the personal estate, and the only property unadministered was real estate, which was devised to be sold after the death of the widow, who was still living, and the proceeds of sale to be distributed among the residuary devisees. The surrogate had ruled the executor to give security for the faithful discharge of his trust as executor, and he appealed. Chancellor Walworth held, under the statutes of New York, that “ the statute authorizing the executor to bring the proceeds of real estate, sold by virtue of a power contained in the will, into the surrogate’s office for distribution, is only for the benefit or protection of the executor, and it does not require the executor to place such proceeds in the surrogate’s hands
There was no statute in this State, in 1843, when the bond was given upon which this suit is founded, similar to the one referred to by Chancellor Walworth. Yet, in a case where a will merely empowered an executor to sell lands for distribution among certain persons, it may be that, under the law at the time the bond in this case was given, the sureties would be responsible for any default of the executor in the administration of the proceeds of the sale, or to creditors for any mal-administration thereof.
In the case of Dominick v. Michael, (4 Sandf. 374—399,) where the words of the will were as follows : “ I authorize my executors, hereinafter named, to sell and dispose of any part of my real estate according to their discretion, either at public or private sale, and to give sufficient deeds or conveyances of the same in fee simple to the purchaser or purchasers thereof,” the court held that “ the power thus to divide or sell may indeed be given to executors, but in its execution they act not at all as executors, but wholly as devisees in trust; and it is therefore no more transmissible to an administrator with the will annexed, than had it been given to trustees, having no other duty to perform under the provisions of the will.” * * * “And as the proceeds of the land, when sold, are to be distributed amongst those to whom the lands themselves are devised, it is as devisees and owners that they receive them, and their respective shares can with no more propriety be denominated legacies than had the sale been made by themselves instead of the executors.”—1 Jacob & Walker, 189 ; 4 Mad. 44. And Mr. Justice Duer, in delivering the opinion of the court, which is distinguished for its clearness and profound research, further said, in speaking of the power given to an executor to sell lands : “ But, where it is given to executors by their individual names, or, as in the present will, to executors hereinafter named, it is certain that it vests in all who are thus named, whether they prove the will or not, by
In Newcombe, Judge, v. Stebbins et al., (9 Metc. 540,) the clause of the will construed was as follows : “ I give and bequeath to my son "William,to hold to him and his heirs forever, all the rest and residue of my real and personal estate, wheresoever situated, including therein all the real estate bequeathed to my wife, subject to the following liens, payments, and charges : first, the payment of all debts I owe at my decease, and all funeral charges, and the erection of a suitable monument at my grave ; second, to pay to my three daughters, Louisa, Lucy, and Mary, each, and to Maria, the wife of Josiah Brown, of Hatfield, the sum of seventy dollars, provided he cancels a claim of nearly that amount he holds against my son Lansford, which I gave encouragement to see paid; the aforesaid liens and payments to be made, one-half in two years, and one-half in
In Ross v. Barclay, (18 Penn. 179,) there was a devise of lands to an executor upon trust, and Gibson, C. J., in delivering the opinion of the court,said: “Onthe foot of the maxim that, when different rights meet in the same person, they are to be treated as if they were different persons, courts of equity, recognizing the union of executor and trustee in the same individual, reddendo singula singulis, have considered real estate, directed to be sold for payment of debts, as equitable assets, and consequently as the subject of a trust. * * * * With us, land has perhaps always been legal assets; and when a trust is created, to bring it into a course of administration, it is proper that an administrator-should succeed to the execution of it; but the statute was not intended for a trust unconnected with an executor’s ordinary duties.” The statute referred to
In Hall v. Cushing, (19 Pick. 395,) it was held, that an executor and his sureties were liable for the unfaithful administration in the execution of a power conferred by the will to invest the proceeds of the sale of personal property; and the court say : “ And generally, the executor is bound to comply with the directions of the will, so far as they may relate to the administration of the estate, and may be beneficial to the assets while in his possession for that purpose; and a neglect to do so would be an unfaithful administration of the estate, for which he and his sureties in the bond would be responsible.”
The case of Prior, ex'r, v. Talbot et al., (10 Cush. 1,) holds that an executor, who is also constituted a trustee, is responsible as executor until he gives a bond as trustee; and the case of Dorr v. Wainwright et al., (13 Pick. 328,) is the only authority referred to ; and in that case there was a bequest of personal property, and the court say : “ Whatever questions might arise upon the effect of this devise of the real estate, they are not now under consideration, and the only question is, what is the effect of this clause in the will as a bequest of personal property.” And further, “that as the will is a law to the executor, and his duty is to administer, that is, to apply, manage, and dispose of the estate, according to the'will, the duties of executors, and the obligation of their sureties, may be as various, as the infinitely varying forms in which wills can be legally made;”
In the case of Barker, ex'r, v. May et al., (9 Bar. & Cress. 489,) it was held, that a devise of lands to executors to be sold, makes the money arising from the sale equitable, and not legal assets; and that a legatee could not sustain a proceeding in the ecclesiastical court, to recover a legacy out of such assets.
In Deering v. Adams, (37 Maine, 264,) the court say : “The bonds given by executors will not protect the estate against the non-feasance or mis-feasance of the trustees, though they be the same individuals.”
In Leavitt v. Wooster, (14 N. H. 550,) there was a devise of real and personal estate to the widow of testator during her life, provided she should see his daughter had a decent support, and should pay certain legacies. The widow was appointed sole executrix of the will. Her bond was in the common form. The court held, that “if another person had been the trustee, the sureties of the executrix would not have been liable for the performance of the trust. Where the duties of each character are distinguishable, why should the sureties for the performance of the ordinary duties of an executrix be holden for the performance of duties of a different character. And our opinion is, that this is not a trust which the executrix is bound to perform, in order to administer the estate according to the condition of the bond, and that the sureties are not liable.”—Also see Gregg v. Carrier, 36 N. H. 200.
In Mason Co. v. Lee, (1 Mon. Ky. R. 247,) the court, in speaking of lands devised by a will to the executor to be sold, said: “ Whether they be simply directed to be sold by
In the case of Speed’s Ex’rs v. Nelson’s Ex’rs, (9 B. Mon. 499,) the court held, that the money arising from the sale of lands, devised to executors for the payment of debts, is not legal assets in their hands, but is a trust fund in their hands, which a court of equity alone can take jurisdiction to enforce its proper administration; and further held, under the statutes of Kentucky and the bond required to be given by an executor, that “ though the proceeds of land, if charged with the payment of debts, constituted equitable assets in the hands of the executor, the sureties were not liable therefor.” It may be that, under the statutes of this State in force in 1843, and the condition of the bond of appellant, this court might hold, that the sureties might be held liable for money arising from the sale of land, sold by an executor, under a power conferred by the will, for the payment of debts; yet the case last cited may be considered an authority, at least, in the reasoning employed by the court, to establish the proposition, that the sureties on the bond of an executor, such as the one in this case, are not liable for the default of the executor in the administration of trusts imposed by the will, which are not included within the ordinary duties of an executor, and which are personal, and not executorial trusts.
In Sims v. Lively, (14 B. Mon. 433,) the devise was to Hardin and Preston Finley, of land and personalty, imposing certain duties and trusts; and in a subsequent clause of the will, they were appointed executors of the will. The persons in whose favor the trusts were created sought to make them and their sureties liable for the default of the executors in the execution of the trusts, and the court held, that “ although the devisees are also named as executors, and qualified as such, yet, as their rights and duties in these two capacities are as different, as if the persons to whom
This case is an authority in point, if the case before reviewed, which holds that there is no distinction between a devise to executors by name or by title, (as to “executors hereinafter named,”) is sound law. In the case in hand, the devise is “ to my executors hereinafter named, for the use and benefit” of the appellees.
The case of Almond et Ux. v. Mason’s Adm’r et al., (9 Gratt. Va. R. 700,) was a bequest of personal property, to be sold by the executors, and the proceeds divided among testator’s children. The executors sold, but failed to divide. It was held, that the sureties were liable for the failure to pay over the proceeds. Such is the head-note to the case, but from the opinion of the court it seems that the executors did not sell, but an administrator de honis non with the will annexed took possession of the property and sold it; and it was held that the sureties on his official bond were liable, “ it being the duty of the administrator to pay over the proceeds arising from the sale of such property amongst the residuary legatees, in the mode prescribed by the will; and by the condition of their bond they bound themselves that he should pay and deliver all the legacy contained and specified in the will, as far as the goods, chattels and credits would extend.” I suppose that by some statute of that State, an administrator with the will annexed was authorized to make sales, where the will conferred the power to sell the personalty upon the executor. It is assumed that he had such authority, and that he acted “ in virtue of his office, and in performance of the duty imposed upon him by his office and the will of the testator.”
In Doe, ex dem., v. McFarland, (9 Cranch, 152,) it appears that the testator devised his land to his “executors hereinafter named, and to the survivors and survivor of such of them as may act, and their heirs, for the purpose of selling as .much thereof as will pay all my debts.” Marshall, C. J., in delivering the opinion of the court on this clause of the
This court from an early day held, that an executor could not maintain a suit, until the will was probated, and he qualified as provided by law.—Cleveland’s Ex’rs v. Chandler, 3 Stew. 489; Gardner v. Gantt, 19 Ala. 666.
In Leavens v. Butler et al., (8 Por. 380,) this court held, that a power conferred on “ executors, or the survivors of them,” to sell lands, could be executed by the one who qualified, and that the power was “attached to the office.” After holding that an executor can not sue in his representative character, “without the jurisdiction of the power by which the letters were granted,” the court proceeds thus: “ The case would be different, if lands were devised to an executor. There the executor might sue as devisee;” and the case from 9 Cranch, 151, supra, is cited alone as authority to sustain this doctrine.
In Lucas v. Doe, ex dem., (4 Ala. 683,) Collier, C. J., delivering the opinion, said: “ The powers of an administrator with the will annexed are the same as those which pertain to an executor as such, and the question is, whether a dévise to sell land is a trust extraordinary, or comes within the appropriate functions of an executor. Prom what has been said, it would seem that it was the former. This question was largely considered in Conklin v. Egerton’s Adm'r, 21 Wend. 430. There, as in the case before us, the inquiry was, whether an administrator cum testamento annexo could execute a power conferred upon the executor to sell and convey real estate. The conclusion of the court was, that a testament concerned the personal property merely, and though by statute it was allowable to make a will of the realty, it did not follow that the person appointed to execute it would, as to all its provisions, be regarded as an executor. He might be considered a mere donee óf a trust power, and where he was authorized to sell lands, he would be a trustee, and could not be charged as an executor for anything in relation to the trust.”
In Perkins v. Moore, (16 Ala. 10,) which was a case of a pecuniary bequest to certain persons, “ to be kept and loaned out upon interest by my executors, until either” (referring to the legatees) “may marry or arrive at lawful age,” then to be equally divided between them — held, that “ the executors will be considered as holding the fund as executors, and not as trustees.” And the court uses this language in the opinion: “ If, therefore, the executors had been appointed trustees by the will, independent of their character as executors, and they had elected to hold the legacy as trustees, and not as executors, and after this election the.fund had been lost, the sureties wrould not have been liable for their default as trustees merely; but that they have elected to hold the fund as trustees, and not as executors, must be made to appear by some plain und unequivocal act; and as there is no act, from which the intention to hold the fund as trustees could be inferred, we could not pronounce that they ever did intend to hold as trustees.”
In Smith’s Distributees v. King, adm’r, (22 Ala. 558,) the court held, that an administrator with the will annexed was
In Petits Adm'r v. Petit's Distributees, (32 Ala. 288,) the court held, that the sureties of a general administration bond, conditioned as required by law, are liable for the waste or misapplication by their principal of money arising from the proceeds of a valid sale of real estate. In this State, by statute,-.lands are held to be legal assets, when sold for the payment of debts. Hence, sureties on the administration bond are liable for the proceeds of a valid sale of land made by an administrator, when he wastes or misappropriates them.
In Martin v. Foster’s Ex’r, (28 Ala. 690,) the devise was to “ my husband, Benjamin E. Foster, of all the interest which I may have in and to the plantation situated, lying and being in Macon county, now occupied by our negroes and cultivated by my said husband, to him and his heirs forever.” All the residue of her estate she bequeathed and devised to him in trust, first, for the payment of debts, and then for her three children; and directs that he keep the children with him, and “ to use the negroes and other property as we have been accustomed to do;” and out of the profits to expend such sums as he may deem necessary in the education of the children, and when they severally arrive at age, apportion to each one-third of the property vested in him for their benefit. It appears that the husband was appointed executor of the will. The court held, that the executor was chargeable with the value of the use of the land for the two years after the death, of the testatrix, as so much in his hands which should have gone towards the extinguishment of her debts; and further held : “Whether, in the after administration of this fund, there will not arise a question of personal trust, which the probate court is incompetent to adjucate, is a point not now before us.”
I shall not notice any other of the numerous adjudications touching this subject.
There seems to be a distinction taken in some of the cases, between a power conferred by the will on an execu
There seems also to be a distinction taken in some of the cases, between a devise of a power to executors to sell lands, and a devise of lands to executors, with power to sell for specified purposes. But whether these distinctions, and others similar to them, exist or not, it seems to me that the weight of authority is in favor of the proposition, that a devise to executors hereinafter named, of lands, for the use and benefit of others, and specifying the mode of distribution, by directing a sale of them for cash or on a credit, and if on a credit, the mode and measure of security to be taken for the payment of the purchase-money, and then directing how the proceeds are to be divided, is a devise to the executors by name as trustees, and not as executors. It is a personal devise and trust. And this, although such lands might have been held by them as legal assets for the payment of debts under the statute ; but having proceeded to perform the trust imposed by the will, they thereby elected to hold it as trustees, and not as the personal representives of the estate of the testator. And a beneficiary under the devise, seeking to enforce the trust, can not recover of the surety, on the official bond of the executors, money resulting from the sale of the lands devised to the executors in trust, which they failed to pay over as directed by the will.
The condition of the bond in this case is, to “ perform all the duties which are or may be required of them as such executors.” This bond does not impose upon the sureties on such bond any liability for the performance of the trusts conferred upon the executors as trustees.
However much it may seem to comport with what may be termed a sense of natural justice, to hold the sureties liable for the delinquencies of their principals in this case, yet it is clear to us, on long established principles, that it is not in accord with the faithful administration of legal
The demurrer to the bill sufficiently raised the question of the liability of appellant as surety of the executors; and upon the law, as we understand and apply it, the demurrer should have been sustained.
The decree of the chancellor overruling the demurrer being erroneous, it is reversed, and the cause remanded.