9 Vt. 41 | Vt. | 1837
Lead Opinion
delivered the opinion of the Court.
The court have not been so fortunate as to come to an unanimous determination in the present case. They deem the case of much importance, both in regard to the principles involved, and the amount in controversy, and it is to be regretted any diversity of opinion should exist in relation to the judgment now given. A majority concur in the following results.
The testimony does not sufficiently show, that Phineas Lyman was in such circumstances of poverty, as to warrant him before the time of his failure in the year 1824, in appropiating the property of his children for their maintenance or education. Before the time he went into trade, in 1818, he seems to have been an attorney, doing a small business, at that time reputed to be worth about five thousand dollars, owning a comfortable dwelling and outbuildings and lot, worth fifteen hundred dollars, which he continued to own till the time of his failure. In short, till the time of his failure, he was in easy circumstances to support and educate his family in an independent manner. And although during all this time, he might in fact, have been bankrupt, still, this question must be determined by his apparent and not his actual means. We ought not now to allow the defend
It is the duty of parents to maintain and educate their infant children, “ they being of sufficient ability.” The benevolent object and true intent of such bequest, as the present, would be almost wholly defeated, if parents were permitted to expend the same without giving any security to account for it when the child should come of age. This court will order the guardian of infants, under suitable security given for the faithful discharge of the trust, to expend a reasonable amount of the property of the ward in his maintenance and education, if the ward is without parents, or they are wholly unable to maintain and educate their children in a manner suitable to their reasonable expectations, and the court no doubt would allow a deduction for pant maintenance, under the same circumstances. This is not the present case. And it does not appear that Lyman, or his children, up to the time of his failure, ever supposed that he was expending this legacy in their support or education. The children were educated respectably, but just as they would have been, had this legacy never been made. Since the failure of Lyman, there is no pretence that any portion of this legacy has been expended by him in the education of these children.
There does not appear to be any evidence, that Lyman intended Charles’ wages, which he was permitted to receive and appropriate,' to go in lieu of his share of this legacy, and if such had been the expectation of the father, and even of the son, he would not be bound by it. What is said of the education of the other children is a sufficient answer to this claim.
It seems to be admitted by the answer, the proois and arguments, that the defendant Buell, who is the only defendant that contests the claim of the orators, accepted the trust imposed by, and made probate of, the will, and took possession of property of the testator, to an amount more than sufficient to pay the debts due from the estate, and pay all the specific legacies, including the one now in controversy.
It is true that the amount of this legacy has gone into the hands of Lyman for the purpose of meeting this object. But the evidence does not show, that Lyman took possession of these funds without the consent of Buell. The notes and other property, which he did obtain without the consent of Buell, would not exceed the amount of his own debt, which he had a right to retain. The other property, which went into his hands, must be considered as having been originally in the joint possession of Buell and Lyman, and, in contemplation of law, to have gone into Lyman’s possession by permission of Buell. Under these circumstances, it would hardly be contended, that Buell could exonerate himself from liability, unless by showing what was equivalent to payment of this legacy. One executor is not indeed liable for the devastavit of another joint executor, in regard to goods which have never been under his control, but, if he permit funds, once in his hands, to go into the possession of his co-executor, and he squanders them, he is liable. And, this is upon the ground that each executor is liable for the faithful discharge of the joint duties, but not of the several duties. Hence, it is very apparent, that the mere fact, that the funds have gone into the hands of Lyman, for the purpose, of paying this legacy, and which he promised to apply, but wasted, is no answer in the case of Buell, to the claim of the orators. Lyman was the last man, who should have been permitted to have the control of these funds, unless under regular appointment and proper security. The relation of parent and child is one of authority and unlimited influence on the one part, and obedience and dependence on the other. And the inequality of this relation is not limited, in any sense, to the term of minority. Hence, it is unsuitable that the property of the child, which the donor intended should be separate and independent of the parent, should be under his control, in any sense. Courts of probate, or chancery,
Upon two grounds then, we think that Buell was originally bound to see to the payment of this legacy, whenever the legatees should come of age, or should have a guardian properly appointed. 1. That he had either the separate or joint control of all the funds belonging to the estate, except what Lyman had a right to retain on his own debt, and, 2d. even if Lyman had obtained funds sufficient to pay this legacy, without the consent of Buell, and which had never been under his control, still, as Buell had funds over and above these, more than sufficient to pay this legacy, and which have since gone to the residuary legatees, he should have appropriated them first to the payment of this specific legacy, and let the residuary legatees pursue the funds in the hands of Lyman.
If it be supposed that this involves the absurdity, that each executor may retain the amount of each distinct legacy, and that the residuary legatees might as well call upon Buell for the amount in his hands, as to call upon Lyman; it will be perceived that the apparent absurdity results from the obligation of a joint administration, which makes each executor liable for the acts of all the other executors. And had Buell wished to exonerate himsélf, he must have compelled the application of all the funds which he had put into Lyman’s hands, as well as to apply those in his own hands.
It now remains to examine the several grounds, upon which the defendant Buell claims to be no longer liable to the demand of the orators.
1. It is said this claim is barred by the statute limitation of all claims, not presented to the commissioners on estates represented insolvent, the commission on the estate of Buell being now closed. But when it is considered, that at common law the remedy for the recovery of a legacy is in Chancery, and
2. The defendants insist upon the statute of limitations of eight years, as a defence to the orators’ claim. It is undoubtedly true, that a- court of equity will not lend its aid to revive claims barred at law by the statute of limitations, or lapse of time. Hence, if the orators claim be of such a character, that it comes within the provisions of any of the statutes of limitations, and the term prescribed has'run, the claim cannot be asserted in equity even. But statutes of limitation operate upon the remedy, and not strictly upon the debt. If a party have two remedies, which are distinct and independent, although for the same debt, as a promissory note or bond for his debt,, and a mortgage security upon land, and either be barred by the statute of limitations, he may still pursue the other. Reed, Admr. of Craigin v. Shepley et al. 6 Vt. 602. Belknap v. Gleason,. 11 Conn. 160, and authorities there' cited. But from what has been already said, it will appear that the court do not hold a legacy to be in the nature of a debt, owing by the executor and by him detained ; and if it were, the limitation would be six years,, and not eight years, as pleaded. It will be equally difficult to perceive upon what ground this claim can be treated as a matter of covenant, on the part of the executor, unless it be the bond given for faithful administration, which has been decided not to be within thatclause
3. The decree of this court in the year 1818, that this legacy, with others, should be paid to the parents of -the legatees, being minors, is relied upon by defendants as being a sufficient defence to the present bill. That decree provided for the payment to the parents, under certain restrictions, the most essential of which was, that the parents should give security for the faithful and full discharge of their duty, as guardians, by mortgage of real estate, and Ozias Buell was appointed trustee of the children, for the purpose of receiving that security. Some of the parents of infant legatees gave the required security and received the legacies. Lyman, having the funds in his own hands, neglected, and, indeed, declined to give the security. And in short, this case was not, in any sense, affected by the decree, unless the mere operation of the decree itself was to legalize that which before was illegal. We think, to give the decree of any court such an operation, would be an unheard of extension of the curing process of judicial proceedings. It is true, that what is done under the sentence, order, or decree of á court of competent jurisdiction, and in the execution thereof, is always legal, and can never be made the foundation of an action, until such sentence, order, or decree shall be reversed, and then only in the case of proceedings, not only erroneous, but irregular. It is admitted too, that this court have the appropriate jurisdiction of the person and estate of infants. The application in the present case was to the proper tribunal, and sufficiently formal.
But it is first to be considered, that this decree was only conditional. In its very terms, it was not to operate upon the property, until the parent had given security in a particular manner. Until that condition was complied with, the decree was as wholly
It is also contended, that the accounting before the probate court is so far an adjudication upon the subject matter of this claim, as to preclude a recovery here upon the part of the orators.
It is contended,'indeed, on the part of the orators, that this decree of the probate court was not upon any such notice as the statute required. But it was held by this court, in the case of Corliss v. Corliss, 8 Vt. Rep. 373, that in regard to decrees of the probate court, it would be presumed that they were had upon proper notice and formal proceedings, although such previous proceedings did not appear of record. And in that case it was held that parol proof could not be received to show that no such notice and antecedent proceedings were had. This decree then is to be held as sufficiently formal.
It is undoubtedly true, that probate proceedings, and the adjudications of probate courts are in rem and bind all the world. But it is to be considered, that the judgment of no court is conclusive upon any matter, only collaterally in issue before it. The adjudication is only conclusive upon those matters directly passed upon by the court.
It is the constant practice, before those courts, when administrators or executors come to render their account, to credit them the amount of claims, returned by commissioners, as so much money paid by them. This is done without any inquiry whether those claims have been, in fact, paid or not. If assets are found in the administrator’s hands, sufficient for this purpose, he is bound to pay all debts returned by the commissioners as due ; and, being bound, it is not material to the question of accounting, whether the payment has been actually made or not. His bond is presumed to be sufficient security for that purpose. But no one ever inferred from this matter being passed to the credit of
It is difficult to perceive why the case of a specific legacy should not come under the same rule with a debt due a creditor. If credited to the executor as so much “ money paid,” this, in contemplation of law, only signifies, that it is to be paid before the distribution of the residuum. For the purpose of ascertaining whether the debt or legacy is to be paid at all, the adjudication may be conclusive, but the-executor must see to it that the money is paid, and he must keep his own vouchers for that fact, and cannot rely upon his decree of quietus, except for what it was intended, as pointing out the manner of disposing of the estate, and it concludes nothing, as to the fact, whether the estate ■has been thus disposed of. To extend the operation of probate decrees beyond this, and make them conclusive upon every collateral matter, recited, or in any way affected, by the proceedings, would be dangerous, and, indeed, subversive of all known and established principles upon the subject of adjudications, operating in rem, and not in personam.
As to the receipts relied upon by the defendants, as a discharge of the shares of the two eldest girls, it will be perceived, that they amount to an admission of payment, when the fact, as found, by this court, was otherwise. The girls, being more than eighteen years of age, could not by our law be treated as infants. At common law, males and females were upon equal footing, in this respect. But that section of the bill of rights in
We are not satisfied from the evidence that any fraud was intended, or was, indeed,- practised upon those legatees. The testimony of Mrs. Lyman is laid out of the case, for the reason, that tve think it did tend to charge her husband, by showing those receipts fraudulently obtained, and, if so, they could not avail the defendant Buell, and thus a decree might go against him. But if the receipt was permitted to operate as a defence for Buell, no decree can pass against the other defendants, although the bill has, as against them, been taken as confessed. For it has long been settled, that if one of two or more joint debtors, made defendants, suffer default, and the others go to trial and a verdict pass in their favor, judgment must be- arrested- as to the defendant defaulted. And- if the testimony of the wife tend, only collaterally, to affect the interest of the husband,- it cannot be used.
These receipts, then, not being under seal,- cannot operate as a technical release, by way of estoppel. They only operate as an admission in writing,- which is not different from an admission made without writing. It is testimony tending to show payment. It is like a promissory note, prima facie, upon good consideration, but not like a bond or other sealed instrument, conclusive. It may be shown, that a promissory note, or any other witten contract, purporting to be upon sufficient consideration, was, in fact, given without any consideration. This is true of the receipts. A receipt, even for a less sum, expressed to be in full of a debt, is usually prima facie evidence of payment of the debt. But this, like all other evidence, resting in parol, is liable to be contradicted. In this case, it being shown that the receipts were given without any consideration, they can have
Having disposed of all the different grounds of defence relied UpQn j^T ^ defendants, it would hardly seem necessary to enter into any discussion of the obligation assumed by the joint bond, given by all the executors with surety, for the faithful performance of all duties, including, of course, the payment of the legacies. The statute in force, at the time this bond was executed, did not prescribe the form of the condition of executors’ bonds. The form of the condition of Administrators’ bonds was given. And executors are required to give bonds to “ return a true and perfect inventory of the estate, and to render an account of his or her proceedings thereon, in the same manner administrators are, by law, obliged to do.”
This latter clause, in grammatical construction, would more naturally seem to qualifiy the act of rendering “ an account,” than the giving of bonds. But it would be a very frivolous construction of this statute, to limit that claim to the rendering of the account, and to hold ihat the rendering of the account had reference only to the statement of the executors’ proceedings, and, whether true or false, no matter. We think there is no doubt the legislature intended that an executor’s bond should be co-extensive, in obligation, with that of an administrator. There would seem to be no good reason why they should not be held to give the same security, that is required of administrators; which, indeed, is now required in terms. At common law, the authority was considered as conferred by the appointment of the testator. It was treated as a personal, fiduciary trust, and the executor was not holden to give any further security for the performance of the duty, than was implied from his selection. But the sound basis of such a rule is not very obvious to common sense, and in practice, it is believed no such rule ever obtained in Vermont. The forms in use, under the statute in force, at the time this bond was given, show, if nothing more, what was then the practical construction of the statute. Those forms are all similar to the bond in this case, imposing the same liability in the case of executors and administrators. The idea of requiring a bond for the mere purpose of securing the return of a correct inventory, and the rendering of a formal statement of the account
We think, in short, from the terms of the statute, it was intended that executors should, as they did in this case, give bonds for faithful administration, which will include the payment of debts and legacies ; and that this bond, not extending the obligation beyond that, is valid and may "be enforced at law. Hall, Judge, v. Cushing et al. 9 Pick. 395.
Being a joint bond it will bind eaoh executor for all the acts of his co-executor. Brazier v. Clark, 5 Pick. 95. 1 Swift’s Digest, 449.
And as the sureties would only be ultimately liable, in cas e of the avoidance of all the principals, and the other executors being confessedly insolvent, or out of the State, the burden would eventually be made to fall upon the estate of Buell.
And, if Buell is ultimately liable for the amount of whatever decree shall pass m this case against Lyman, and Lyman is confessedly insolvent, and Buell is so far directly interested in the subject matter as to be properly joined in the bill, and the subject is properly cognizable in this court, we should not dismiss Buell and pass the decree against Lyman alone, when the amount was eventually to come from the estate ofBuell. But, having jurisdiction of the case for the purpose ol inquiry and partial relief, we should feel bound to retain it and pass the decree against Buell, even if it were for the devastavit of Lyman, on the ground that the obligation assumed, in giving a joint bond, extended even to the case of the devastavit of a co-executor. Rathbone v. Warren, 10 Johns. R. 587.
So that, in either view of the case, we think the orators are entitled to a decree for the amount of the legacy and interest, up to the time of the accounting before the probate court. The interest up to that time is allowed on the ground that the executors had credited the interest, as having received it.
Since that time, and up to the bringing of the bill or demand of the legacy, (and the bringing of the bill is the first demand shown,) the right to claim interest will depend upon the rule of law applicable to the case. After the bringing of the bill, the orators are of course entitled to interest, as for the detention of the money.
It seems to be well settled, that in the case of adults, entitled to a pecuniary legacy, especially when the executor is compelled to pay the same out of his own funds, he is not chargeable with interest until after demand, or until he has an opportunity to pay the same, when the legacy is not payable at a specified time. In the case of infants the rule is otherwise, and the executor has generally been held liable for interest. But when it is recollected that the defendant, in this case, (Buell) is compelled to pay the legacy out of his own funds, for permitting Lyman, indeed, to waste the funds of the testator, and for paying over funds to the residuary legatees, which should have been first appropriated to the payment of the specific legacies, under a n is-take of the law, possibly; and when it is recollected that since the legatees, most of them, came of age, the claim has been permitted to lie by, for almost ten years, we do not think the claim for interest rests upon any very substantial grounds. It has been held that a legacy, payable to an infant, on his coming of age, is not to draw interest, notwithstanding the executor has had funds for the payment of the legacy. Tyrrel v. Tyrrel, 4 Vesey, Jr. 1.
W e hold in this case, that the executor could not legally pay the legacies, until the legatees came of full age, or guardians were legally appointed, and to still hold the executor, Buell, who is compelled to pay the legacy out of his own funds, liable for interest, while he could not be permitted to pay the money, or while the legatees were lying by, after they came of full age, and when there is no pretence of his having received interest, is inconsistent with the just and reasonable duty of executors. We think the doctrine of the case cited from 3 Mumford, 198, Cavendish v. Heming, more in accordance with just principles. It was there held that, even in the case of infant legatees, the executor was not to be charged with interest until after guardians- were appointed, and had notice of such appointment.
This disposes of the case, except the questions in relation to the operation of the petition for rehearing and the decease of one of the orators, there being no bill of revivor.
In the English chancery, and in New York, it is held that, on petitions for rehearing, the case is open for the party petitioning, only upon the points relied upon as a ground of rehearing, and rehearings there are usually upon some specific point upon the certificate of two counsellors, that there should be a rehearing, and then the entire case is open to the oposite party. But here, rehearings are only granted by order of two chancellors, and usually upon the merits and the entire merits of the case, and the whole case is considered as open to both parties. And so it will be perceived the present case has been treated.
In relation to the decease of one of the orators, it will depend upon the nature of the interest of the legatees. If the interest is joint, and in the nature of a joint tenancy, they'ws accrescendi attaches, and the whole legacy may be recovered by the surviving orators, without the necessity of a bill of revivor. And such we think is the nature of this bequest. It was not a separate interest in each child in an aliquot portion of the gross sum, which was intended by the testator but a joint interest in the whole. The survivors are enti-tled to recover the whole. Gilbert, Executor, v. Richards, 7 Vt. Rep. 202.
Dissenting Opinion
dissenting. The importance of this case, and the novelty of many questions involved in it, justify, in my judgment, the expression of my individual opinion. Whatever respect I may entertain for the judgment and opinion of my brethren, my own sense of duty will not permit me to acquiesce in a decision, which I am convinced is not sustained by sound legal principle, and which, in my opinion, does manifest injustice in the case in which it is pronounced.
Wm. C. Harrington died many years since, having made and published his last will and testament, in which he bequeathed a special legacy to the plaintiffs, under the denomination of the children of Phineas Lyman, and similar legacies to the children of certain others of his relatives ; and constituted his two sons, Wm. and George, his residuary legatees. By the same will, he appointed the said Phineas Lyman and the defendant’s intestate, Ozias Buell, with others, the executors of his will. The trust was assumed by the persons designated in the will. Lyman possessed himself of a portion of the assets, which were not only sufficient to pay the particular legacies, but left a considerable surplus for the residuary legatees. The debts of the testator having been paid, the executors remained, for some years, trustees for the legatees, who wmre minors, and having no legal guardians, the legacies could not be paid to them by the executors. In this state of things, the executors petitioned the court of Chancery to be relieved of their trust, and that court decreed payment of the particular legacies to the parents of the particular legatees, upon the parents giving bonds for the performance of their trust, in a manner prescribed by the court. This condition was complied with by all the parents, except Lyman, the father of the orators, and the several legacies paid to them by Buell from the assets in his hands. Lyman claimed the right of retaining the legacy to his children, out of the assets in his hands, and did so retain. A settlement was then had, in the probate court, of the executors’ account, on which occasion the executors rendered and presented, in the first instance, separate accounts, but by direction of the probate court, they were afterwards consolidated. In these accounts Lyman claimed a credit for the amouut of the legacy to his children, which was allowed, and Buell claimed a similar credit for the several particulár legacies paid by him, in pursuance of the decree in Chancery, which was also allowed. The residuary legatees then preferred their claim for the surplus, which was duly paid to them by Buell, and their claim was satisfied. At this period, nothing remained in the hands of either executor, except the amount of the orators’ legacy, which was in the hands of Lyman, he having retained the amount out of the assets in his hands. Up to this time Lyman was solvent, and in good credit. Buell, having accounted
The main question, and that upon which, in my judgment, the case turns, is, whether Buell can be made responsible for the default of Lyman. It is admitted that Buell has accounted for every farthing which came to his hands, and it is further admitted that Lyman has retained the amount of this legacy, for which he has never accounted; that all other claims upon the estate ol Harrington have been satisfied, but, it is alleged that this legacy has never been paid, and that Lyman is utterly irresponsible. Upon these premises, there can be no possible ground of recovery against Buell, or his representative, unless it be a supposed liability resting upon him for the delault of his co-executor.
It is obvious, then, that there is noxpeculiar equity in the orators’ case. The claim against Buell is in the nature of a claim against a surety, and rests upon the footing of strict legal right.
It is conceded by the orators, and, if it were not, it requires no argument at this day to establish the position, that the trust of co-executors is not necessarily joint. At common law, their liability is several. Each is liable for his own acts alone. This is too manifestly the current of all authority to admit of debate.
It is insisted, “ that if one executor possesses assets and passes them into the hands of a co-executor, who wastes them, both are liable.” This doctrine requires ^ome qualification. It is doubtless true, that if one executor possess assets applicable directly io the purposes of the trust, and passes them into the hands of a co-executor, without good reason or sufficient purpose, it is a breach of trust in not making the application himself, and he is liable. But cases may and do exist, where such a transfer of assest is necessary and proper, and where the proceeding is not only consistent with a conscientious discharge of duty, but in pursuance of the original design of the party creating the trust. I shall endeavor to shew presently, that this is such a case. So it is said, “ that if one assents to a disposition of assets by the other, which proves a mis-application, both are liable.” There • is the best of all possible reasons for this, viz. that both are equally guilty. So, “if two join in a receipt for money, which comes to the hands of one who wastes it, both are liable.” It is undoubtedly true, that when they choose to act together, in such a manner as to render the proceeding a joint act, it is the act of both, and both are responsible for it. But it remains to be ascertained, how, and in what manner, the transaction in question can be made a joint proceeding, and the default in question, the default of both.
Before proceeding to apply the general rule to the present case, it will be well to notice another position, viz. that the executors, having executed a joint bond, are of course liable for the acts of each other. To sustain this position, Swift’s Dig. p. 449, is cited, and also Brazier v. Clark, 5 Pick. 96. Swift says merely that they may be made liable in an action on the bond, and the case in Pickering goes no further. So far as the joint undertaking by bond goes, they are unquestionably joint
My own opinion is, that we are to treat this claim precisely as if no bond' had ever been given. But if I err in this, it is because the obligation of the bond and the duties of the trust are so blended and amalgamated, as to form an entire and indivisible duty, receiving its character from the impress of both. If this be so, and the claim of the orators is to be regarded as one and the same, whether entertained here or elsewhere, it will be difficult, 1 apprehend, to make out, that this identical claim is extinguished by the commission of insolvency upon Buell’s estate, and, at the same time, still subsists with all its characteristics and incidents, to be. c n orced hereafter. Indeed it is impossible, in my opinion, to entertain this controversy, in this court, as arising out of the bond. It is only by disregarding the bond, and treating it as a case ol trust merely, that this court can take cognizance of it. But of this more hereafter. I return to the question, whether Buell can be made liable upon common law principles.
There is no pretence, in my view, for treating the default as
I use this argument here, merely to show that Buell can not be made liable, upon the ground that he acted jointly with Lyman, at the time the breach of trust was committed. It will be seen, however, that this consideration of the severance of the joint trust, if it ever was joint, and the aspect which the trust then assumed, have a material bearing upon other points Jn the case.
1 ought, perhaps, to add here, that, in this state of the business, Buell, having ceased to act, was precisely in the condition oí a trustee, who had resigned his trust. Will it be insisted, that a trustee, who has retired, can be made responsible for the subsequent default of the acting trustee, upon the ground that they act jointly ? I think not: but if he is to be made liable in such a case, it must be upon the ground, either that he is responsible, of course, for .the acts of his co-trustee, or is in some way implicated in the breach of trust complained of. The first is not pretended, and the other part of the alternative I shall now consider.
If Buell be liable at all, as having been in any way accessory to the breach of trust, it must be either, because he suffered the fund to go into the hands of Lyman in the outset, or because he did not withdraw it afterwards. I make this the basis of my argument, because I see no other ground which can be taken. The question whether he should not have .paid the particular legacy out of the funds in his hands, and turned the residuary legatees round to the fund in Lyman’s hands, I consider not important to the main question of his liability; for if he can be made liable at all for the funds in Lyman’s hands, he must be responsible to one or the other, and it is immaterial to which.
It is insisted that Buell is responsible on the first ground, because he placed the funds in Lyman’s hands; and it is said that “if one executor possesses assets and passes them into the hands of a co-executor, who wastes them, both are liable.”
I have already remarked upon this position, as requiring qualification. It does not hold where there is good reason for the
With these qualifications, let us apply the rule to this case. A part of the property in Lyman’s hands was obtained by him without the concurrence of Buell: a part, it is said, was placed in his hands by Buell. Admitting this to be true, although the evidence hardly sustains the assertion, yet that property consisted of demands in favor of the testator against sundry individuals, which were placed in his (Lyman’s) hands for collection. These demands, although in one sense assets, were not such in another. They were assets when converted into cash, and not before. Now suppose Buell to have had these demands in his possession, and to have placed them in the hands of an attorney for collection, and the avails bad been lost, without any default of his. Would he be responsible? Most clearly not. If then, he was at liberty to employ an attorney for this purpose, —and that he was, will not be denied — was he not at liberty to employ the man designated by his testator for that purpose ? the man in whom the testator had reposed the same confidence as in himself?
For what purpose was Lyman named an executor, if he was to have no agency in executing the will ? And how could Buell be required to exclude him from all participation in the trust, when the testator himself had appointed him co-executor with Buell, with equal and co-ordinate powers ? It is to be borne in mind that the testator was himself an attorney, with an extensive practice and great property. He left, as we may well suppose, many things unsettled, and must have been aware that the agency of an attorney would be necessary in the adjustment of his affairs. It indeed was necessary. Lyman was also an attorney, a relative and partner in professional business with the testator. He was made by his relative and partner one of his executors, doubtless as a favor, and with a view to the benefit
As to calling the money out of Lyman’s hands, I know of no process, either at law, or in equity, by which Buell could effect it. Lyman, as trustee, was as much entitled to retain the money as Buell. Had Lyman been irresponsible, it would have furnished good grounds for the interference of the court of chancery. But the fact was otherwise, and there was as little reason to displace him as Buell.
The only course, which could be taken, was taken. A petition was brought by the trustees to be relieved of their trust. Upon this application a decree passed, directing payment of the legacies to the several parents of the infant legatees, upon their giving bonds to account with the legatees,upon their becoming of age.
Let us see then what was the effect of this decree ; whether Buell was guilty of any default in this part of the transaction, and whether the effect was to charge, or discharge him.
It is to be borne in mind, that Lyman was one of the executors, and father of these legatees, that he had in his hands the amount of the legacy in question, which he professed to retain for these orators. In this state of things, Lyman and Buell brought their petition to be discharged of their trust as executors, and the court decreed payment of the several legacies to the parents of the several legatees, of whom Lyman was one, requiring security from the parents, by way of bond. In pursuance of this decree, Buell pays the other legacies, taking the security required, and pays the balance of assets in his hands to thé residuary legatees. Lyman accounts for the amount in his hands, ^deducting the legacy, but did not give the security required.
The result of all this was, in my opinion, that Buell’s trust was determined, and all liability on his part extinguished.
The object and .intent of this decree was to put an end to the trust and responsibility of the executors, and this was its necessary legal consequence. The parents were substituted as trustees to the executors, and Lyman held the fund, not as executor, but as parent. Payment from Lyman to Lyman was not contemplated. To suppose such a ceremony to have been intended by the court is ridiculous, and a libel upon the court. But in t-his, as in all other like cases, the law made the transfer. It was like decreeing a dividend to a creditor of an insolvent estate, who is also administrator. The moment sufficient assets come to his hands, the law makes the application, and the debt is ipso facto paid. If this be doubted, let us examine the operation of this decree more in detail, both in regard to the fund itself, and those who held it. The argument, that these legatees could resort to Buell for their legacy, assumes that the other particular legatees could do the same. He was bound to pay them, upon their furnishing the security required, which he did. He paid them and their claim was satisfied. The residuary- legatees were entitled to the residuum without giving security, and they received it. Thus Buell had paid over every farthing in his hands — his trust was fully executed, and, so far
The only answer, which can be given to this argument, is, that Lyman did not furnish the security required by the decree. It is said that giving that security was a condition precedent to the payment of the money, and, therefore, the decree did not take
So far, indeed, as respects the other legatees, whose parents were not executors, this is true. The decree contemplated a payment to them, which payment might be withheld until the condition was complied with. But as to Lyman, the case was different. The money was already in his hands, and it was so understood by the court. The language of the decree, so far as he was concerned, was, “keep the moneyas trustee for your children, but furnish us a bond for the faithful execution of that trust.” From the nature of the case, the giving the bond could not be a condition precedent to the reception of the money, for the money was received before the bond was required. The true construction of that decree is, that it made Lyman a trustee for his children, and required of him a security in that character. The idea, that the security -was a condition precedent in his case, is an absurdity. When, therefore, the original trust was broken up, and the fund distributed, the law made the application ; leaving it to the court and those interested, to enforce the new trust against Lyman, either by exacting the security or otherwise. This necessarily resulted from the other proceedings under the decree. Buell having executed his trust, and the common fund being distributed, the money in Lyman’s hands became, of course, the money of the-orators, and he a trustee for them alone.
Another view may be taken of this point, which, I apprehend, is decisive of the whole case. The sole ground of complaint in the case is, ’that Lyman did not give the security required. Had this been done, however worthless it might have proved in the end, it is not pretended that Buell would be liable. Indeed, had this been done, it is conceded that the decree in Chancery would have afforded Buell a full and perfect defence in this case. Every thing in relation to the execution of the will, and the final distribution of the estate, down to the execution of the decree in chancery, was performed agreeably to the requirements of the will, and the terms of that decree, except the omission on the part of Lyman to give the security.
Now how can Buell be made responsible for that omission. How could he compel Lyman to give the security ? It is said he should not have paid over the money, until the security was given. This argument is nonsensical. The money was in Ly
The’truth is, the requiring the security, as a condition precedent, was nugatory; as a subsequent duty, it was foreign to Lyman’s obligation as executor, and, a fortiori, to that of Buell.
Besides, there was a full and adequate remedy against Lyman, which these orators might have enforced in this court, by compelling him either to furnish the security, or surrender the fund. They might have displaced him as trustee, and it was their own fault if they neglected this remedy until he became insolvent.
But it is said, that Buell should have provided for this legacy, notwithstanding the fund in Lyman’s hands. Had Lyman been insolvent or in doubtful circumstances, before the payments by Buell, there would be some plausibility in this reasoning. But the fact was otherwise. It was then as much the duty of Lyman to guard against the insolvency of Buell, as the reverse. If they were jointly liable to the legatees, this argument is unimportant ; but, if each was responsible for his own acts only, then the fact that Lyman had retained a fund for this purpose, was a sufficient reason for Buell’s paying the other legatees.
It is argued however, that, although he was at liberty to pay the particular legacies, yet he was not justified in paying the residuum to the residuary legatees, as the former had a preference.
I do not perceive the force of this argument. Had the whole assets been paid to the residuary legatees, leaving nothing for the particular legatees, I admit he would have been liable. But the amount of assets had been ascertained, they were sufficient to pay the particular legacies, and a specific sum was left for the residuary legatees. The latter were as fully entitled to their specific portion as the former. I admit that if there be no more than sufficient to pay particular legacies, they must be preferred, but when there is a surplus, and the precise portion of each is ascertained, 1 can see no ground for a preference. Indeed, in this state of things, I do not understand what is meant by it.
Indeed I see not how Buell could resist the claim, either the particular or general legatees. Suppose the other particular legatees claim their legacies of him, would it be any defence against them that there was a fund in Lyman’s hands, set apart for the payment of the legacy in question ? It would be. so, indeed, if, in case of a solvent estate, it would be a good reason for not paying one debt, that there were assets sufficient to pay-others also. Nor can I see how he could resist the claim of the residuary legatees. The assets being liquidated, there could, as I have already observed, be no distinction between the claimants. If this needs further illustration, let us suppose there were assets to the amount of ten thousand dollars, or in other words, cash in the hands of the executors to that amount. There were, I think, four particular legacies of one thousand dollars each, and upon this supposition, there would be six thousand dollars for the residuary legatees. They are therefore entitled to the money in the ratio of six to lour. Now by what logic can it be made out that one class is not entitled to their six thousand, as fully, absolutely,' and without condition or preference, as the others are to their four thousand.
Lyman and Buell both could retain against the residuary legatees, only the single amount of this legacy. It is very clear, then, that, so long as the money was in Lyman’s hands, set apart to pay this legacy, Buell could not resist the claim of the residuary legatees. Indeed there was an obvious propriety at that time, in Lyman’s retaining in behalf of his own children.
There is nothing, then, in the proceedings of Buell, in paying over to the other legatees the assets in his hands, which should render him responsible to these orators; because he did simply what the necessity of the case required, and what a court of Chancery would have compelled him to do, had he refused.
I have thus far endeavored to shew, that Buell was never responsible for this defalcation of Lyman. A brief recapitulation of the argument may not be improper. In the outset, I assume, what indeed is not contested, that one executor is not, as a matter of law, liable for a devastavit of his co-executor. And it follows from this, as a necessary corollary, that one is not of course liable for all claims, whether by creditors or lega
I insist that Buell, in this case, is not liable for the default of Lyman, on the ground of their having executed a joint bond to the probate court.
First, because this would not vary the character of the trust, but they could be made jointly responsible only through the medium of the bond, or by suit ppop it.
And secondly, because the original trust of the executors was executed and determined, before the supposed devastavit occurred, the only default consisting in Lyman’s not giving the security required by the court of Chancery, as parent and guardian of the orators, without which this bill would not be sustained a moment; and this was evidently no part of his duty as executor, and not within the scope of the bond.
Further, Buell is not responsible upon the ground that they acted jointly, because he is not implicated in the particular default complained of, and it is not enough to render co-executors responsible for each other in all respects, that they have acted together in some respects ; and, because, if they did act jointly as executors, yet there was no default in Lyman’s retaining the arpount of this legacy, as one or the other must be the depository of the funds, and it was as much the duty of Lyman to call the fund out of Buell’s hands, as Buell’s duty to call it out of Lyman’s hands. And when Buell closed his trust, by paying over the funds in his hands to those legally entitled, there had been no default, no delinquency, aqd if Lyman afterwards squandered the fund held hy him, as trustee for his children, it was an act not within the scope of their proceedings as executors, and Buell is not liable.
1 also hold that Buell is not made responsible by reason of passing funds in his hands into the hands of Lyman, in such manner and under such circumstances as render him accessory to the devastavit by Lyman, First, becapse there is no satisfactory evidence in the case, that any thing passed from Buell to Lyman ; and secondly, because, if any thing passed, it consisted of demands which were not assets until converted into cash, and which he might have placed in the hands of another attorney for collection, without making himself liable for a devastavit, and which, of course, he might lawfully deliver for that purpose to his co-executor, an attorney by profession, and one designated
Now I hold that the decree'had- precisely the same effect, so far as Buell was concerned,- as if the security had been given, This fund was understood at- the time to be in Lyman’s hands, retained on account of this legacy. It was expected and designed that he should keep it. It- was expected and designed that the other legacies should be paid out of the fund in Buell’s hands. This was done. Now was there not a full and complete distribution of the assets ? and was Lyman after this accountable to any human being, but his children ? The old trust was extinguished and a new one created, necessarily,- and as the
I now proceed to the question in the case growing out of provisions of the act, relating to the probate of wills and the settlement of estates.
Buell deceased long prior to the bringing of this bill, his estate was represented insolvent, regular proceedings were had under a commission of insolvency, the time for presentation of claims had expired, and the orators’ claim was not presented.
In my opinion, it is barred. On this point, I assume, that whatever is strictly speaking a debt, debitum in presentí, must be duly presented, or it is barred. I also assume, that in all cases where Courts of Law and Courts of Chancery have concurrent jurisdiction, a bar of this description, if available at law, is also available in chancery; or, to speak more guardedly, when a Court of Chancery can do no more than decree payment of a sum of money which a Court of Law would adjudge, a bar of this kind is equally available in both courts.
It is to be borne in mind also, that this statute is of a different character from ordinary statutes of limitation inter vivos. The
With these preliminary remarks, let us inquire whether the claim in question, if it ever had legal existence, is not barred by the statute above.mentioned.
In the first place, if the bond gives a. remedy, as it clearly does, for every default coming within the scope' of the executors’ duty, then the claim was susceptible of proof before commissioners. The default was committed long before Buell’s decease, and Lyman was long before that period utterly insolvent. If therefore all claim within the provision of the bond,, and all claim, which might be enforced by means of the bond, is barred absolutely, it is difficult to perceive what is left of the orators’ claim. If it be admitted that this claim does not come within the scope of the bond, as not within the executors’ duty, and not within the condition to discharge faithfully that duty, then there is an end of another ground, upon which the case rests. And if it be conceded, as it must be, in order to evade the effect of the statute in question, that the act complained of is not a breach of Lyman’s bond, nor of his official duty, then it follows that it is a breach of duty in him as trustee for his children, and the case is disposed of upon the ground I have already taken.
It appears to me, that Buell’s liability for the acts of Lyman is fully as extensive upon the bond, by which he undertakes specially for his acts, as it is when resting upon the mere relation of a co-executor. Indeed, it is more so. At common law, it is admitted, that executors are not liable for the acts of each other;
It will not be pretended,-1 trust,- that a court of chancery is not bound by this statute, or that it can decree damages for a breach of this bond, where a court of law would be precluded.
But put the bond out of the case, and it is,- in my opinion, equally clear that this claim is barred by the statute.
Something has been- said as to maintaing, a suit at law for a legacy. Whether this can be done in this State, is not a question of much importance, as in our mode of settling estates, the question is not likely to arise. I see no great difficulty in maintaining such a suit in any case, where an action can be sustained against an executur, for the debt of his testator. If there be any objection to it, it is because a court of law would not go into an examination of the condition of the estate, to determine whether there are assets for the payment of legacies ; but when the estate is represented insolvent, no such embarrassment can arise.
But be it a legacy, or be it what it may, there was certainly no difficulty, in this case, in presenting the claim, and having an adjudication upon it, before commissioners. It will be remembered, that before the decease of Buell, the estate of Harrington had been fully settled, all debts had been paid, and the surplus paid to the residuary legatees. A settlement had been had in the probate court,- in which the executors had taken a credit in their final account, for this legacy, as paid, according to the usual practice of that court, which allows the executor for all ascertained charges upon the assets, whether in fact paid or not, leaving it to the claimant to enforce' payment from the executor, and no further action of that court was- to be expected in the premises.
Under these'circumstances, this claim was no longer a legacy, depending upon the state of the assets,- but it was a debt absolute and unqualified, ascertained of record, to which the claimants were absolutely entitled, and which the executors, or one of them, at least, were absolutely bound to pay; not merely as executors, but as individuals,-having received the money for that
The fallacy, of the plaintiffs’ argument consists in treating this as a legacy, when it was no longer such. As a legacy, it had been satisfied and paid, the money was no longer a part of the estate of Harrington, that estate, if I may use the expression, had paid it, and nothing remained but that Buell and Lyman, who had received the money from the estate, should pass it to the true owners. I can not conceive any difficulty in enforcing a claim under such circumstances, nor in its being allowed by commissioners. I do not understand how Buell’s administrator could resist the claim, in this state of things, upon the ground that it originated in a legacy. No matter how the money came into the hands of the executors, It was there, and they are no longer accountable to the probate court, but to the orators alone. It was a proper claim for the consideration of commissioners, and, if not presented to them, is barred.
It has been suggested, that there is evidence tending to show a waiver, on the part of the administrator of Buell, of the protection of the statute. It is unnecessary to spend time upon this point, as it is well understood that the statute is not intended ior the benefit of the administrator, but of the estate, and it is not competent for the administrator to dispense with it.
The only remaining ground, upon which it is attempted to evade this statute, is, that the case presents a trust cognizable only in equity, not within the powers of the commissioners, and, of course, not barred by the statute. This position assumes,
In my apprehension, it is altogether fallacious, to treat this case as a case of trust, cognizable only in chancery. Buell, as executor of Harrington, was trustee for these orators in the same sense only, as all executors and administrators are trustees for creditors, heirs, or legatees. Call it a trust, or call it what you please, it is a subject falling within the exclusive jurisdiction of the probate court. The administrator or executor is the mere officer of that court, deriving his authority from that source, although the executor is nominated by will, exercising his functions under the superintendance, order, and ultimate jurisdiction of that court. In entertaining this subject, we invade that jurisdiction. The case before us illustrates this truth, with more force than any supposititious case. In the matter of Harrington’s estate, that court established the will and allowed the legacy under it. Will it be pretended that this decree of that court, in a matter within its jurisdiction, is not conclusive ? or that we have power either to set aside the will, or annul that legacy ? Further, the Probate Court, upon the final accounting, not only ascertained that there were assets for the payment, but actually decreed the payment, and allowed the amount, as paid, in the executors’ account. Whether it was, in fact, paid, or to be paid thereafter, that court would not inquire ; no more than it inquires whether debts allowed by commissioners are, in fact, paid or not, when it credits the administrator lor the amount. The reason of this is, that in all these cases, the claimant has adequate remedy in the ordinary common law courts. Now if
But if we cannot do all this, nor, indeed, any of this, what is there left of our jurisdiction ? Nothing indeed ; for the case admits of nothing else, but to enforce the' decree of the probate court, because it is the decree of that court. And here, a new and extensive field is opened for the exercise of chancery jurisdiction. The probate court decrees the payment of debts, as allowed by commissioners, and legacies, if any; or payment of an ascertained and liquidated balance, in the hands of an administrator, to the heirs; and all these parties come into this court, to enforce payment of a specified sum, adjudged to be due them, through the medium of a decree of this court, to be in its turn enforced by execution to be issued here, or by process of contempt. I am not aware that this court ever assumes jurisdiction, as a mere court for the collection of debts, or to aid in the enforcement of decrees of another tribunal, unless under peculiar circumstances, affording, of themselves, grounds for equitable inteference.
If this subject requires- further illustration, let us suppose that the probate court had rejected the will, and thus annulled the legacy. Would it be competent for us to establish either the one or the other ? It will not be pretended.
If then this court can neither establish the legacy, where the probate court has disallowed it, nor disallow it where that court has allowed it, what becomes of the position that this is a case of trust cognizable only in Chancery ? The truth is, the subject is not within tbe jurisdiction of. this court at all, unless we interfere for the mere purpose of enforcing the decree of another tribunal.
But this is not- all.- The matter came before the probate court again upon the decease of Buell, in the settlement of his estate. That estate was represented insolvent, and regular
There is still another view of the subject, worthy of consideration. I am unable to conceive what we have to do with the defendant, the administrator of Buell, as trustee. It is to be borne in mind, that this suit was not instituted, until after the decease of Buell, and was then brought against his son and administrator, Frederick Buell. He also is deceased, and the bill now stands against Marsh, administrator de bonis non of Ozias Buell.
Now it is clear that the original defendant ’n this suit was not,
The idea that Buell was once trustee will not sustain us. If there were a subsisting trust at the time'of his decease, a new trustee should be appointed to supply his place. If he have squandered the trust property, or others have done it with his concurrence, or if a debt has grown out of a settlement of his account, as trustee, it is to be enforced, like every other debt, in the mode pointed out by law.
As to his administrator, I can conceive of no ground, upon which we can deal with him, unless he has received the trust fund, or some portion of it. If his intestate is indebted in any sura, for which the estate is bolden, it is competent for the probate court to require a presentation to commissioners, and if this is not done, it is barred, peremptorily, by the statute.
To prevent misapprehension, I here repeat, that I use the words ‘ trust’ and ‘ trustee,’ in their strict sense. I am aware, that in the common parlance of the profession, these words are used in a general, and often loose, sense. But I here use them as denominating that sort of trust, which falls within the jurisdiction of a court of Chancery, exclusively, and not within the scope of ordinary legal remedy ; and my object has been to prove, that this case does not present such an instance of trust, as is not susceptible of being brought before the commissioners of an estate, represented insolvent. And the position, which I take, is, that this claim was not only proper for the action of the commissioners, but that it should have been presented to them, and that, not having been presented, it is barred by the statute.
There is another point in the case, a subordinate one indeed, as it concerns two only of the orators, upon which I will say a few words.
It appears that two of these orators, after becoming of age, executed receipts to Buell for their portion of the legacy. It is not supposed that any thing was paid to them by him upon that occasion, but the receipts must have been intended to sanction the previous proceeding of Lyman, in retaining the amount in his hands, and to discharge Buell.
It is to be remembered that these persons were of full age,
To prove this, the testimony of Mrs. Lyman is put into the ease ; but, in my opinion, it falls far short of competent proof of the fact. In the first place, she is most clearly incompetent to testify, as her husband is party to the bill, and so identified with Buell and his liability, that he could not be made a witness. In the second place, her testimony is altogether too general. She says, merely, that the'orators did not know what they signed, but gives no particulars, by which her means of knowledge can be tested. They might have been aware of the import of these papers, and still her testimony may have been very honestly given. But it is so highly improbable, that persons of full age would execute such an instrument, without knowing its import, that something very satisfactory is required to prove the contrary.
Considering, then, that no fraudulent or improper practice was resorted to in-obtaining the receipts, I have only to say, that the execution of them not only sanctioned the previous proceedings, but also placed Buell in a situation, in which he must necessarily yield to the claim of the residuary legatees. It aifords also another ground for the reasoning already presented in this opinion, by which I have endeavored to shew, that, long before Lyman became insolvent, the original trust was at an end, and he became sole trustee for his children. Every other legacy had been paid, the estate fully distributed, except that the money in ■question remained in Lyman’s hands, for the benefit of the orators, and two of them, being of full age, executed to Buell receipts for their portion. Now how it can be considered that Buell’s original liability, as executor, continued, or that he was still joint trustee with Lyman, and answerable to these two, who had thus discharged him, is beyond my comprehension. This act, in my opinion, made Lyman, so far as the two children were concerned, a sole trustee.
Some other points have been discussed in the argument, which I deem it unnecessary to notice. I have remarked upon such only as were, in the view, ■which I have taken of the case, material ; and I am admonished by the length to which these remarks have been extended, of the propriety of closing them.
In conclusion, 1 may add, that this is not an attempt to call out of