19 Fla. 300 | Fla. | 1882
delivered the opinion of the court.
Mary Sherrell and the other parties named above filed their bill in the Circuit Court for Gadsden county against Elijah S. Shepard, administrator of the estate of Alfred Shepard, deceased. The plaintiffs and the defendant are the heirs at law and distributees of the estate of Alfred Shepard. Plaintiffs prayed a discovery of the estate, both real and personal, of the decedent which came to the hands of the administrator, for an account of that portion disposed of, a discovery of what remains on hand, that the annual settlements of the administrator may be opened and set aside, that upon said accounting the assets might be applied in due course of administration, and that the portion of the residue due plaintiffs be decreed to be paid to them.
After answer denying in many respects the liability of the administrator as charged, and setting up various matters of defence, and after replication thereto, the Chancellor entered an order appointing a commissioner to take testimony in the cause. Upon the coming in of the report of the commissioner containing the testimony taken, there was an interlocutory decree passed appointing a master to' state an account, giving general directions as to the method of stating it, and to take further testimony touching the
To this report both the plaintiffs and the defendant filed exceptions, and from the order of the court made upon the hearing of the exceptions both parties appealed. We consider each of the appeals in this opinion.
We take up first the exceptions of the plaintiffs as insisted upon in their petition of appeal.
The first exception is: “Because the master failed to charge the defendant with the full amount realized from the sale of the personal property of the said Alfred, to-wit: $1,727.35, and also with the amount of a certificate of deposit in gold which was made by John T. Seegar, and delivered to the said Alfred in his lifetime, to-wit: $637.78.”
The objection to the first item is upon the ground that the master failed to charge the defendant with the amount of the note of McAlpin for personal property purchased.
The statute requires the administrator when giving credit upon a sale of the personal property of the decedent to take a bond or promissory note with good security of the purchaser. In this case he did take a promissory note with one surety. The Judge of the County Court testifies that he “ approved the note of McAlpin and Martin, which was a joint and several note, and when he approved the said note he” (here a word is evidently omitted. We presume it was thought) “ it good for the amount, and always made inquiry as to the pecuniary standing of parties before he approved notes.”
This is not sufficient to excuse the administrator. We know of no statute which gives the Judge of the County Court any power in the matter of this approval; and the question of sufficiency is not referred to him for enquiry,
It is the duty of the administrator to be diligent in the collection of personal property notes when due, and if an investment of the funds realized is proper under the then existing circumstances of the estate, such investment must be of that character as the law sanctions. In this case it does hot appear that the administrator took security of the character required by the statute, and there is unexplained delay to sue for two years or more.
In England such sales are made for cash, and the executor is immediately chargeable with the price. The rule in Pennsylvania, as it is in South Carolina and Georgia, upon the general subject of the liability of administrators, is certainly as liberal as in most of the other States. (Neff’s Appeal, 57 Penn. State, 95, by Judge Sharswood.) The case of Johnston’s Estate, 9 Watts & Sergeant, 108, is in principle this case. In that State the rule was to sell the personal property at a short credit, taking notes with security. The Supreme Court of that State, in Johnston’s Estate, 9 Watts & Sergeant, 108, says: “When this method is adopted he ” (the administrator) “ is not chargeable when he acts with good faith and ordinary care immediately on the sale, but he becomes liable at the expiration of the time of credit^ and to discharge himself he must show that the money, if not received, was lost without any default or negligence on his part. Thus if he is able to prove the solvency of the purchaser and surety at the time of sale, and that in the intermediate time he became insolvent, or that he used ordinary diligence to obtain payment and failed, he is entitled
The next exception is because the master failed to charge the defendant with the amount of a receipt of John T. Seegar for $637.78. This receipt was given by Seegar to the deceased on the first of January, 1867, for that amount of gold deposited with him.
Alfred Shepard died in November, A. D. 1870, and the defendant obtained letters of administration on his estate on the eighth of November of the same year. This sum was charged to the administrator as so much cash in his account filed 17th January, 1871. In his account of 1876 a credit for this sum and interest is entered in the words
The question is whether to the extent a loss has occurred to the estate the administrator is responsible.
The defendant here obtains letters of administration on the eighth (8th) of November, 1870, charges himself with this receipt as cash in January, 1871, and neglects to bring suit against its maker, a solvent merchant in good standing, who at all times denied his liability, until the 29th of March, 1873, over two years and three months after his appointment, and at a time at which a suit could not have resulted in its recovery, as is shown by the result of the suit upon the promissory note of Seegar instituted at the
“ In the ease of Lawson vs. Copeland, 2 Brown’s C. C., 156, an executor was charged with a bond debt for neglecting to take legal steps to collect it, in consequence of which it was lost. So in Powell vs. Evans, 5 Ves., 843, he was charged for neglecting to call in money lent out by the testator on personal security, .and the debtor became insolvent.” Says Mr. Justice Nelson in Schultz vs. Pulner, 11 Wend., 366: “ If debts are not collected within a reasonable time after letters testamentary or administration, either by personal application or suit, which by such means may have been collected, whether the debts have been lost by such delay or not, or whether their motives may have been pure or not, the law holds them personally responsible to the creditors and distributees. There is nothing hard or unjust in this principle. It is only exacting of these representatives that diligence and attention to the business of others voluntarily assumed upon- themselves which they should and which every discreet man would bestow upon his own.” See also Stark vs. Hutton, 3 N. J. Eq., 306, 307.
In determining what is reasonable diligence in such matters it must be remembered also that an administrator’s duty is
The case of Kee’s Executors vs. Kee’s Creditors, 2 Grat., 116, cited by appellant and defendant, will, be found upon examination to present facts of a peculiar character entirely unlike the facts in this case.
The case of Southall’s Administrator vs. Taylor, 14 Grat., 283, cited by appellant and defendant, does not support the view that in this matter the administrator here under the circumstances of this case would be excused. In that case one of the questions was, whether the administrator was bound for the amount of a bond. The court say: “ It seems that Southall is clearly bound for the amount of the bond in question on the ground that he did not use ordinary diligence in respect to it after it fell due. He suffered nearly twelve months to elapse after its maturity without (so far as the record shows) making any demand for its payment.” The case of Thomas vs. White, 3 Little, 177, was where under very peculiar circumstances and contrary to the general rule, an administrator was not charged with a loss occasioned by his not bringing suit until the act of limitations opposed a bar to recovery. The rule in South Carolina, as announced by its courts in 1841, cannot prevail in this State to its full extent, as there personal security was what was usually required for investments. See Glover vs. Glover, McMullen’s Equity, 154, but as appli
Seegar was simply a depositary of this gold. The transaction was not a loan. Payne vs. Gardner, 20 N. Y., 170. Under the circumstances we think that interest should be allowed only from the time' wThen the suit was commenced for its recovery.
The next exception which we examine is that of the defendant to the charge of the administrator with the amount of the Seegar note. This note was dated January 1, 1867, due one day after date, and went into the possession of the administrator about the 8th November, 1870. On the 13th December, 1872, Seegar, the maker, died, and on the 23d December Hester B. Seegar qualified as his administratrix. The administrator sued the administratrix of Seegar on the 29th March, 1873. A suggestion of the insolvency of the estate was filed on the 24th April, 1874, and the note has not been collected in consequence thereof. There was delay to sue here therefore, an over-due note of over two years during the life-time of its maker, and when his administratrix is sued three months afterwards insolvency is suggested. During the life of the maker he was believed to be solvent, his credit was good, and he was paving interest on the money. The note represented a loan made by Alfred Shepard to Seegar.
The evidence disclosing the circumstances attending this transaction is substantially as follows : The administrator testifies that in June, 1872, he notified Seegar that he held the note as administrator, and told him that he wanted it paid by the following February (1873), as he wanted then to make his final settlement; that Seegar then told him to
S. S. Strange, one of the heirs of Shepard, testifies that about October, 1872, he had a conversation with John T. Seegar relative to said note, in which conversation Seegar told him to push up E. S. Sheparl to collect the note, as he was ready to pay it; that the said Shepard did not care to collect it at present; that a week or so after this conversation he met Shepard at Shepard’s gin-house and repeated to him -what Seegar had said about the note, and that Shepard said he did not care to collect it until he knew that all the heirs were ready for a final settlement' as he did not want to pay the interest on the note; that the note was good, and that he was going to hold on to it “ until the last day in the morning,” as he did not know what might turn up. The witness, on cross-examination, says that when Shepard told him this he neither objected nor consented to it.
Summing this testimony up it amounts to this: That the administrator deeming the maker of this note solvent such being his reputation in the community, and being a
In South Carolina, Glover vs. Glover, McMullen’s Equity Reports, 154, a distinction is based upon their, policy as to investments of such funds. As ordinary personal security, alone is there required the court enquire what motive there could be for calling in what is thought to be a good investment, as all the object to be obtained would be again to invest it upon like or other security. A different rule it -is true controls the investment of funds in hand and the collection of sums due an estate. The rule is much more strict as to investments, but the rule as to the collection of notes due an estate is not that the administrator may, because of reputed solvency, postpone the collection of the note of one engaged in trade to the date when a distribution is to be had. An administrator who extends credit up to the time of distribution neglects to collect the asset for as long a time as he can neglect- this duty. If it is his duty to collect it
In this ease the administrator was bound to call in this note in a reasonable time and reinvest the proceeds or otherwise dispose of them according to law. We think if he had so desired he could have collected it, and failing so to do he must take the risk of treating it as an investment and continuing it without any sufficient reason as he did. The rule is that for worthless paper an administrator is not chargeable and need not sue, and if it be also true that he need not take measures to collect solvent notes, and can postpone action looking to their collection until distribution, then he is practically required to do nothing in the matter of collections, and all the risk falls upon the estate.
The remaining exceptions are based upon allowances made under the provisions of the statute of February 17th, 1833, which is as follows: “ Executors and administrators shall be allowed all reasonable charges on account of disbursement of funeral expenses, and in the administration of the estate of the person deceased, and shall also be allowed a fair and just compensation for their services, and also a compensation not exceeding six per cent, on money arising
First. All reasonable charges on account of funeral expenses.
Second. All reasonable charges incurred in the administration of the estate of the person deceased.
Third. A fair and just compensation for his services.
Fourth. A compensation not exceeding six per cent, on money arising from the sale of real and personal property of the deceased.
In view of this statute we examine the action of the court when controlled by its provisions. An allowance for a sum paid an auctioneer for selling the personal property, we think is a proper credit to the administrator. It is a reasonable charge and disbursement for the benefit of the estate. Sale of the personal property by an experienced auctioneer will result generally in great benefit to the estate. The presence of the administrator is also necessary to see that good security is taken when credit is extended.
The next allowance objected to is on account of a sum for advertising the time and place of sale of the personal property. This is a reasonable and proper charge against the estate.
The next allowances objected to are amounts paid commissioners, cost of .court and attorneys’ fees in a proceeding for partition had before the Probate Court between the defendant and the: plaintiff's. [These items are given in Mr. Malone’s brief on page 306. — Rep.] It appears that in deference to the heirs the lands were not sold, but were divided among them by an order of the County Court, each heir re
The next allowance excepted to is the sum of $24.50. The objections made here to the items composing this charge are so general that we are unable to determine what is the precise position of the plaintiffs. [Mr. Malone’s brief, page 306.] They say many of the items are disconnected with the administration and were for personal benefit. ' Some of the charges are in connection with the partition suit before mentioned. ' Our views as to these we have expressed. The administrator, it appears, did not live at the county site. This voucher embraces a number of charges for going from his place of residence in the country to the county site in town. Some of them are for a single service which evidently consumed 1 but a short time in their performance. The administrator furnished his own horse arid buggy in making the trips, and the charge is usually two dollars. "We are inclined to think that the charge in some cases is too much, but we have nothing before us to sustain such a conclusion. We do not know the distance traveled. We do not know but that he was occupied some time in finding those persons with whom he had business, or the length of time he had
The next credit allowed, which was excepted to, is an allowance of $125.85, a commission of 6 per cent, on $2,-097.82, amount of sales of the personal property. We cannot find sales to this amount. We find sales of personal property to the amount of $1,999.57. If this sum represents the amount of “ m,oney arising from the sale of personal property ” the allowance is within the law, and we will not disturb it. If it represents promissory notes or bonds received from purchasers at such sale it is not a commission on “ money,” and cannot be allowed. The administrator is entitled to commissions on the cash received at such sale, but where credit is extended he is not entitled to a commission except as he collects the note or security. In the case of Moore & Montford, Executors, vs. Felkel and Wife, 7 Fla., 63, the Circuit Court instructed the jury that they should not allow commissions on the value of lands and slaves, and this court sustained the instruction, holding that the purpose of the act was “ to restrict to a percentage on money arising from sales.” To the extent that the allowance conflicts with the view’s expressed the exception should have been sustained;
The next objection is to an allowance as follows:
“ Commissions on $263.56, collections on certain notes and accounts, (a) 6 per cent., $15.60. Commissions on $1,-942.25, coin and currency, @ 3 per cent., $58.26.”
We cannot understand these allowances otherwise than as being for accounts and money left by deceased. This being so, we are not prepared to say that the allowance of six per cent, for services rendered in collecting the notes and accounts is improper. This is not commissions upon
It appears that the sum of $1,942.25 came into the possession of the administrator when he qualified ; that he deposited it with William Munroe for about two months, when he disbursed it to those entitled. He was allowed two dollars for his services in going to town to disburse it, and a compensation of three per cent, for his responsibility in taking care of and paying it out.
The length of this opinion forbids our entering upon the discussion of the general subject of the matter of compensation to trustees, executors, administrators and others occupying similar fiduciary relations. The whole subject is fully and ably presented in the third edition of Perry on Trusts, §§918, 919, and notes.
The question in a case of this character is not the cost of safe keeping and labor alone, but a compensation for responsibility also. Looking to the decisions in the several States the commission and per diem here allowed is reasonable. In Bendall’s Distributees vs. Bendall’s Admr., 24 Ala., 306, five per cent, on the amount of cash which came to his hands was allowed the administrator. In Yir
The next objection is to an allowance of twenty-four dollars and fifty-eight cents as commission on the amount of the Seegar note which was charged to the administrator as a loss occasioned by his non-performance of duty. This matter should be treated we think in the same -way in which an improper investment is. Under the general principles of equity the distributees ai'e entitled to receive all such sums, principal and interest, as were paid upon this note, the administrator being entitled to compensation for his services in collecting. This is the extent of the service he rendered. The rest was neglect and carelessness, not as a matter of course criminal, but neglect in a business sense. These sums will be charged to him in his yearly account and will enter into his yearly balances. Eor the sum remaining due the administrator will be charged simple interest. This we understand to be the rule adopted as to the Lockerman & Craig note in Moore & Montford vs. Felkel, 7 Fla., pp. 54, 60. See also Sanderson’s Administrators vs. Sanderson, 17 Fla., 862 ; Perry on Trusts, 471.
The next objection is to an allowance of fifteen dollars ($15). We are unable to see from the master’s' report where such a distinct entry was made for this service. The testimony of the defendant is all we find upon the subject. He states that the memorandum of claims “ in Exhibit B. were utterly worthless, or he so regarded them, that he went to Liberty county, Florida, during the sitting of the Circuit Court three several times and tried to collect the claims but could not do so.” An administrator, notwithstanding common report of insolvency of a debtor to
The next exception was to an allowance for five dollars paid R. S. Tucker, eight dollars to J. E. DuPont and four thirty-five one-hundredth dollars to S. E. Stewart. We find nothing upon this subject in the record except an entry of a credit in the master’s account for the sum of $5 paid R. S. Tucker. Referring to voucher number one, upon reference thereto we find it is for sheriff’s costs. As to the other items we find a simple entry of $4.35 paid S. E. Stewart, costs on execution against McAlpin and Martin, insolvent. As to the charge of $8 for amount paid to J. E. DuPont we find a receipt for that amount of costs by him as sheriff. The Judge of the County Court having the accounts before him and having allowed them, the presumption before the Circuit Court and here is that the charge is not for the same service. We find nothing in this record to rebut this presumption, except that the receipts are fo¡r sheriffs’ costs by two different sheriffs. We presume one succeeded the other to the office, and that the charge was ^for different services by different officers. If the charges are for the same service as a matter of course only one charge can be allowed. The fact that the suit in which these costs were incurred was unsuccessful is not alone sufficient ground to
This disposes of the plaintiffs’ exceptions in the Circuit Court to the master’s report.
The first exception of the defendant in the Circuit Court to the master’s report was on account of the charge of the Seegar note to the administrator. That matter has been already disposed of.
The second exception is to the refusal of the master to credit the defendant with the sum of thirty-two fifty one-hundredths dollars, being per diem in attending court in prosecuting the suit against the administratrix of J. T. Seegar. This exception it is insisted should not be allowed because the service was rendered necessary by the laches of the defendant in not collecting the note. It is true that this court has felt constrained to hold, as the Circuit Court did, that this administrator should he charged with this note because looking to all of the circumstances we think such is the law.
It does not necessarily follow, however, that the administrator is not entitled to compensation for his services rendered in connection with this suit or an allowance for costs therein. These services and costs were not incurred in case of a suit between trustee and cestuis que trust. The suit here is by the administrator against a stranger debtor to the estate upon a contract with the deceased intestate overdue when it came to his hands. The rule is that if the litigation here in connection with which these expenses and
In this case the administrator, during the life-time of the debtor, instead of collecting the debt as was his duty, relied upon the promise of the debtor to pay when he needed it for distribution.’ The debtor dies, the administrator calls upon the attorney of the estate, and the administrator leaves with the idea that all will be right; that when the assets are made available the debt due his intestate will be paid. He calls again. He is told that the estate cannot or will not pay more than seventy-five cents on the dollar. He calls again. He then finds it doubtful whether it Will pay-fifty cents, and there is to be no interest allowed on his debt. In the meantime no declaration of insolvency is filed in the County Court by the debtor. Considerably vexed, if not angered, and properly so, we think, from the record here, he sued before the expiration of six months after the
As to the matter of costs paid the Judge of the County Court. The exception as to this matter is general. We do not propose in this or any other ease to examine all the bills of costs filed during a lengthy administration and cull out what we think are illegal charges. To the extent that they have been pointed out here we have examined them. Wherever the charges are illegal they must be disallowed to the extent they are illegal and charged to the administrator. His remedy is not against the estate.
As to the exception in the matter of the commission allowed on $1,942.25 cash received, we have already disposed of the matter.
The only remaining exception to be considered is to the charge of the defendant by the master with compound interest on $1,514.22 for four years after the commencement of this suit and after defendant had ceased making settlements with the Court of Probate.
We know of no rule which authorizes a difierence in the rate of interest after the commencement of the suit. Money received and not re-invested according to law is presumed to be money “ retained ” by the administrator, and the rule of the statute is that the interest must be added to the principal annually. The administrator can
The decree in each appeal is reversed, and the case will be remanded with directions to the Circuit Court to recommit the report to the master with instructions to reform his report in accordance with this opinion and with the principles of equity in this behalf prevailing.