84 W. Va. 729 | W. Va. | 1919
Plaintiff, as administrator de bonis non of the' estate of Beulah Westerman, daughter of W. S. Wiley, deceased, and wife of C. G. Westerman, deceased, who qualified and became the administrator of the estate devised and bequeathed to her by the will of her father, brought against Citizens Trust & Guaranty Company, surety on Westerman’s bond as administrator, this action of debt on the bond to recover assets belonging to her estate in the hands of Westerman unadminis-tered at the date of his death; and to defeat recovery thereon defendant, in addition to nil debit, conditions performed and conditions not broken, pleaded specially the insolvency of ■ Westerman from the time he qualified as such administrator to the date of his death. This plea the court refused to strike from the file on plaintiff’s motion, but did certify its ruling thereon to this court to test the correctness thereof, thus presenting the single question whether, because of such insolvency, any liability on the bond attached to the defendant as surety therein.
The decisions of this state furnish no precedent or criterion to guide us in reaching a proper conclusion upon this proposition. What is not less embarrassing, we meet at the outset a contrariety of .judicial opinion whenever the question has been discussed. The facts may be gathered from the opinion in Morris v. Westerman, 79 W. Va. 502, which, so far as they
The condition of the administration bond involved here is that the principal, “C. G. Westerman, administrator of the estate of Beulah (or Mrs. C. G.) Westerman, deceased, shall faithfully pay the rents and profits or proceeds of said estate which may lawfully come into his hands, or to the hands of any person for him, to such person or persons as are entitled thereto, and shall in all other things well and truly discharge his duties as such administrator. ’ ’
The special plea filed by defendant sets up by way of defense the following: “That C. G. Westerman was at the time he was appointed and qualified as administrator of the estate of Beulah Westerman, deceased, insolvent, and ’* * * continued to be insolvent during the entire period that he was administrator, * * * to-wit, up until the date of his death, * * * and that at no time during the said period * * * could the said debt decreed (in Morris v. Westerman) as owing from the estate of C. G. Westerman, deceased, to the said C. S. Farmer, administrator d. b. n. of the estate of Beulah Westerman, deceased, have been collected from the said C. G. Westerman; and that at no time during the aforesaid period * * * could a greater amount have been collected from G. G.
Whether Westerman in fact was or was not insolvent when his wife died or when he died, or in the meantime, is immaterial so far as this discussion is concerned. For that purpose the facts set up in the plea are taken as true, for a motion to strike has, we think, the same effect upon the question of the sufficiency of a pleading as a demurrer thereto would have had. Besides, like every other material fact alleged by a pleading, Westerman’s insolvency as set up in the special plea is a fact to be proved by him who relies on it by way of defense, in this instance the surety in the fidelity bond. We are dealing now only with the right of the defendant, to plead and rely on insolvency to exonerate itself from the liability sought to be enforced against it, and, if it can, to sustain the plea by necessary proof the burden of which rests upon it.
The single question presented is whether the allegation of the insolvency of the administrator during the time covered by his administration and his consequential inability at any time during the administration to collect the debt owed by him to the estate of his wife constitutes a valid defense to the action instituted against the surety on his official bond. As already indicated, instead of there being a general concurrence, there is a marked lack of harmony among the judicial decisions upon the question. This confusion is largely due to the diversity of authority at the common law as to the manner of treating a debt owed by a personal representative to hi's decedent at the time of his appointment. Many courts by a legal fiction treat such debt as immediately liquidated -and as constituting assets in the hands of the representative from the moment of his qualification, upon the theory that, as the personal representative cannot demand of receive payment of himself,' or sue himself, and since he is bound to account for his own debt as for all other debts, the law presumes that he has done what he is legally bound to do, and therefore charges him with the amount as a debt paid.
What is generally known as the “Massachusetts Buie” upon the subject seems to have been announced as early as 1814
The Supreme Court of Oregon endorses the same doctrine in United Bretheren v. Akin, 45 Or. 247, and holds the sureties on the bond of an executor liable for the amount of his personal debt to the estate, though they executed the bond without any knowledge of indebtedness by the executor to the ■decedent, or of the executor’s insolvency and inability to pay the debt. This holding, however, seems to be warranted by a statute of that state, as it is perhaps by statutes of other •states, providing that an executor of an estate shall be liable for any claim of the testator against him, “as for so much money in his hands. ’ ’
The attempt to compel, the sureties of an executor or administrator, the rule being the same in each case, to pay a debt •due from him to the estate administered, when, had' another person not so indebted been appointed as such, he could not possibly have collected it because of the continued insolvency •of the debtor, certainly may frequently bé fraught with serious consequences, and for that reason ought not to be sanctioned without due consideration, especially when no warrant can be found therefor other than the legal fiction that such a debt is to be treated as so much ¿ash belonging to the estate •at the time of the appointment — a fiction adopted and approved, it is said, merely for the purpose of justice and convenience. But if "such were the purposes, its application ought not to be extended to cases where gross injustice will result. 'The rule necessarily must be based upon a presumption that all men are solvent and able to pay their obligations, but since that presumption is obviously not true in fact, to enforce the rule under all circumstances may work great hardship. When applied to a case where the personal representative was insolvent at the time of his appointment and so continued until his death or discharge, a peculiar injustice might be •caused by placing him in such a position that he might be ■charged with contempt or embezzlement for failure to pay •over moneys with which he is charged, but which he has nevek received, since he was not able to pay, or by charging his sure
But the better rule, as it seems to us, is that followed by the majority of courts, which, while treating the liability as money on hand for administration purposes, properly considered, do not so deem or treat it for all purposes, but place the duty of the fiduciary toward his own debt to the estate upon the same level as other debts due thereto. Such rule does not mak$ of the surety á guarantor of the payment of the debt owed by the personal representative, the collection of which, had it been owed by any other, would have been excused- upon proof of the continued insolvency of such debtor.
Thus, as remarked by the Supreme Court of Vermont in Lyon v. Osgood, 58 Vt. 707, 715: “The extension of the legal fiction of payment so as to make the surety liable for the executor’s debt beyond his means to pay, when not guilt.y of laches, would often work great injustice to the surety. The surety ought not to be required to contribute from his own funds to make up an estate for the deceased which he in fact was not possessed of at the time of his death. * * * In the absence of laches we think the surety is liable upon the bond for the executor’s debt only to the extent of the executor’s ability to pay it.” Harker v. Irick, 10 N. J. Eq. 269, restates the same proposition.
The Supreme Court of Kentucky in Bucket v. Smith’s Adm’r, 26 Ivy. L. 991, 82 S. W. 1001, puts the debt of an administrator or executor on the same footing as a debt
The bond executed by deceased and his surety does mot purport to impose absolute liability. Its condition' is (1) that the principal shall faithfully pay the rents and profits- or proceeds of the estate which may lawfully come into his hands, or to the hands of any person for him, to such person or persons as are entitled thereto; and (2) shall in all other things well and truly discharge his duties as such administrator. With respect to debts other than his own the personal representative is chargeable only with the faithful discharge of his duty to make a prompt and efficient attempt to collect them, and when such collection is rendered impossible by the insolvency of the debtor, his surety is not responsible therefor. Debts owed by the representative should be treated, in the same manner, and when at the time of his appointment, and continuing until his discharge or death, he was insolvent and unable to collect such debt from himself, his surety should not be responsible for that which no diligence could have prevented. Such is the rule followed in the great majority of states. Re Walker’s Estate, 125 Cal. 242; Sanchez v. Forster, 133 Cal. 614; State v. Gregory, 119 Ind. 503; Bucket v. Smith’s Adm’r, 26 Ky, L. 991; Sanders v. Dodge, 140 Mich. 236; McCarty v. Frazer, 62 Mo. 263; Howell v. Anderson, 66 Neb. 575; Harker v. Irick, 10 N. J. Eq. 269; Baucus v. Barr, 45 Hun 582, affirmed in 107 N. Y. 624; Matter of Piper, 15 Pa St. 533; Rader v. Yeargin, 85 Tenn.
Of course, if the personal representative was solvent when he assumed the duties of his. office and later became insolvent and unable to pay his debt, or if he was insolvent at first but later became solvent, the surety might well be liable for a default under such circumstances, as many cases hold, though,according to the averments of the special plea, such question is not now presented. The averments of that plea, if proved upon the trial of the case, will constitute a bar to the action.
No other questions are properly presented in the record for our consideration at this time. Our order, therefore, will affirm the ruling upon the motion to strike out the special plea, and direct the certification of our decision to the circuit cowf of Wood County. '
Puling of circuit court sustained..