24 F. Cas. 165 | U.S. Circuit Court for the District of Massachusetts | 1825
This is a bill in equity, and it has come before the court upon distinct demurrers put into different parts of the bill, upon the most material causes of which it may be necessary for the court to express an opinion. Upon this posture of the case, the facts stated in the bill, so far as they are covered by the demurrers, are to be taken to be true. If the demurrers to the extent of their reach cannot be sustained, they must be overruled. The rule in equity is, that a demurrer cannot be good in part and bad in part; though it may be good as to one party and not as to another. If, therefore, it covers too much ground, it will be overruled as to the whole; and the court will not separate the sound' from the unsound parts, but leave the party to state his general rights of defence in his answer. Cooper, Ch. Prac. 113; Mayor, etc., of London v. Levy, 8 Ves. 398.
The first point presented by the demurrer is, that upon the case made by the bill, all remedy against the defendant (Jonathan L. Austin), as executor of James Ivers, is barred by the Massachusetts statute of limitations. The act of 1788 (chapter 66), in the third section, provided, that “no executor or administrator that shall hereafter undertake that trust, shall be compelled or held to answer to the suit of any creditor of his testator or intestate, unless the same suit shall be- commenced within the term of three years next following his giving bond for the faithful discharge of his trust, &c. provided such executor or administrator shall give public notice of his appointment to that office, in the manner this act directs.” There is a further proviso, in the fifth section of the act, that it shall not extend to any action “for the recovery of a legacy, bequest, gift, or annuity, arising, accruing, or becoming due, by virtue of any last will and testament.” The third section of this act was repealed by the act of 1791 (chapter 28), and in lieu thereof it was provided, that “no executor or administrator, who has been appointed since the passing of the foregoing act (Act 1788, c. 60), or who shall hereafter be appointed, shall be held to answer to any suit, that shall be commenced against him in that capacity, unless the same shall be commenced within the term of four years from the time of his accepting that trust, provided ne give notice of the appointment in the manner prescribed in the act before recited” (Id.). It is observable that in this clause the restrictive words of the former act, limiting its operation to creditors, are dropped, the words in that act be
There is another view of the statute of limitations very material to the present cause. I pass over the considerations, whether the executor can ever avail himself of the statute in bar to a bill in equity, without pleading it, and whether any court ought, of its own mere authority, to hold it a good bar, when the executor has not elected to put it in the shape of a bar, but it comes out incidentally on the other side in the allegations of the bill. These considerations deserve a very deliberate examination; but I pass them over, because there is a flat exception in the very substance of the statute, which goes to the overthrow of the limitation itself. It is the proviso, that it shall not be a bar unless the executor has given notice of his appointment in the manner prescribed by the law. It has been adjudged, that the omission is fatal, not only as against the administrator, but the heir and devisee. Bachelder v. Fiske, 17 Mass. 464; Emerson v. Thompson, 16 Mass. 429. Now the bill contains no allegation, that the executors of Ivers ever gave due notice of their appointment; and certainly the court cannot presume it. It cannot, by inference and argument, create a positive bar, where all the facts, constituting that bar, are not before it. If therefore the other considerations, already alluded to, were of no weight, there would be intrinsic difficulty in arriving at the conclusion upon the facts'in the bill, that a strict and absolute bar was presented to the court. It is proper, however, as this matter may not go to the merits, and be a mere slip in the pleadings, to give the subject a more comprehensive discussion.
The argument of the plaintiff, drawn from the matter of the bill, is, that the statute of limitation does not apply to him, because, though the will of Ivers was proved in 1813, yet that probate was not, at that time, conclusive on him; and until it was conclusive, the bar did not begin to run against him. It is well known, that in this state the courts of probate have an exclusive and peculiar jurisdiction as to the probate of wills; and a probate once made therein is, in general, conclusive upon all parties, as well as to the real, as personal, estate bequeathed by the will. The statute of 1783 (chapter 46), which is incorporated into our present probate act of 1817 (chapter 190), after giving this jurisdiction, directs, “that any person aggrieved, at any order, sentence, decree, or denial of any judge of probate, &c. may appeal to the supreme court of probate,” within one month from the time of making such order, sentence, decree, or denial, in a manner prescribed by the act. Then comes this further proviso, “that any person beyond sea, or out of the United States, who shall have no sufficient attorney within this government, at the time of such order, sentence, decree, or
I do not think it necessary to give any opinion upon the point, suggested at the argument, whether, in case of an appeal from the decree of a court of probate, the sentence becomes a nullity, unless confirmed by some act of the court above. An appeal in ordinary eases in ecclesiastical courts is not supposed to have such effect, but merely to suspend the operation of the decree, until the superior court has acted upon it, or has pronounced the appeal deserted. See Toll. Ex’rs, bk. 1, c. 2, §§ 9, 10. And the fifth section of chapter 46 of the act of 17S3 seems to point in the same direction. But it is unnecessary to discuss this point; because, be this as it may, until the appeal is actually made and perfected, the decree is in full force and vigour, and every act done under it is rightfully done. But when the appeal is made, it certainly, by the express terms of the fifth section, suspends any further proceedings under the decree, until a final determination of the appellate court. In the ordinaiy case of decrees, where all parties live within the state, a month is allowed, within which an appeal may be made. The executor or administrator may still go on, until it is made, and if not made until the last day of the month, his intermediate acts must have validity. But, surely, it cannot be maintained, that if the appeal were duly made within the month, the mere fact, that the decree had been in operation for ten or twenty days, would make the statute of limitations run, and that notwithstanding the appeal might not be determined, until after four years, it would continue to run and conclude all parties. Such a construction would be so inconvenient and unjust, that no court would resort to it, unless it were unavoidable. A creditor cannot sue an executor or administrator, when his appointment is in- suspense; nor can the latter meddle with the assets, so as to discharge the debts. What then would be the consequence of such a doctrine? That the rights of all parties might, if one may use the expression, be in a state of suspended animation, and yet a bar be all the while running, which they could not avert. It appears to me, that the proper exposition of the statute is, that the bar, let in by the probate of the will and administration granted thereon, is suspended by the appeal; and it revives again, only when the administration is again put in motion by the determination of the appellate court. Suppose an executor or administrator should, after his appointment, die within a year, and no administration should be taken, or it should be in litigation, until after the lapse of four years, are all creditors to be barred, because the statute began to run in the time of the first administrator? If not, what is the difference between the ease of an administration suspended by an appeal and suspended by death? In respect to the common statute of limitations, some equitable exceptions have been admitted; and where the statute has once begun to run, it has sometimes been intercepted by suspensions arising from the acts of Providence. The cases of Kinsey v. Heyward, 1 Ld. Raym. 432, and Wilcocks v. Huggins, 2 Strange, 907, may serve as examples. See, also, Willes, 257, note a. In the latter case, the court suggested that the time of one year, usually allowed to an executor to commence a new action, in lieu of one which was gone by the death of his testator, might be properly enlarged, where the executor had been retarded by suits contesting the will or administration.
It strikes me, that in the ordinary case of creditors, the limitation ought not to be held to run, except during the period in which there is a living, unsuspended administration, and of course a right to sue a party competent to be sued. But the doctrine of relation may be relied on. It may be suggested, that such ought to be the effect of an appeal, if the decree be overturned; but if affirmed, then the administration ought to be deemed always in operation from the beginning. The doctrine of relation ought not, in my judgment, to be applied in cases of this nature, so as to work a wrong. It is generally applied in support of rights. And the same evils will exist in relation to creditors, whether the decree be affirmed or reversed. In both cases, during the contestation, the administration is, by the provisions of the statute, stayed and suspended. But, if there were any doubts on this point, as to creditors generally, the case of the plaintiff is certainly entitled to be excepted. He was out of the country, and the probate of the will and the consequent administration had no manner of operation to bind him. The statute secured to him a right of appeal, and as to him, there was not a rightful probate or administration, until the affirming decree of the appellate court. While he was contesting the validity of the administration itself, under the statute, it surely cannot be said, that there was a rightful administrator, whom he might sue, and in whose favour the statute was running. That would be to hold, that the administration was suspended, and yet in activity, at the same time, in relation to the same persons. The statute ought not to be so construed as to involve absurdities. To be rational, it must be expounded in regard to non-residents, entitled to contest the will, to have no operation whatsoever,
A case has been put at the argument (which indeed is said to be the very case at bar, but with that suggestion I meddle not), which illustrates the propriety of this doctrine. Suppose the testator, by his will, gives an estate to his non-resident son, upon condition that he releases all the debts due him from the testator, and the son appeals from the probate; shall he lose all his rights as creditor by a contestation of the will, if the litigation reaches beyond four years after the administration is first granted?
My judgment is, that, as to the plaintiff, the statute did not begin to run until after the affirmance of the decree in the appellate court; and that, as the present suit was brought within four years from that period, there is no bar growing out of the statute, which can prevent him from maintaining it.
There is yet a very important consideration connected with this subject, which ought not to be omitted. It is, that the statute of limitations never was intended to apply to any cases of trusts, or trust property in the hands of executors and administrators; but simply to property belonging to them, as assets of the testator. The law on this subject does not appear to me involved in any real difficulty. Executors are charged with no more in virtue of their office, than the administration of the assets of the testator. If, at the time of his death, there is any specific personal property in- his hands, belonging to others, which he holds in trust, or otherwise, and it can be clearly traced and distinguished from the testator’s own, such property, whether it be goods, securities, stock, or other things, is not assets to be applied in payment of his debts, or to be distributed among his heirs; but is to be held by the executors as the testator himself held it. But if the testator has money, or other property, in his hands, belonging to others, whether in trust or otherwise, and it has no earmark, and is not distinguishable from the mass of his own property, the party must come in as a general creditor; and it falls within the description of assets of the testator. This is the settled law in bankruptcy and in the administration of estates. See Dexter v. Stewart, 7 Johns. Ch. 52; Kip v. Bank of New York, 10 Johns. 63; Moses v. Murgatroyd, 1 Johns. Ch. 119; Decouche v. Savetier, 3 Johns. Ch. 190; Deering v. Torrington, 1 Salk. 79. Stock therefore, expressly held in trust for others by the testator, is not part of his assets to be administered by the executor, but coming into his hands, as the general representative of the personalty, he is by law clothed with the same character of trustee of the property, and succeeds to its obligation. If he holds it after four years from the grant of the administration, he is still responsible to the cestui que trust, as a- trust superinduced upon his character as executor, and in virtue of his suecessorship. The cestui que trust is not, in such ease, strictly and merely a creditor of the testator; and the statute bars only claims of a pecuniary nature against the testator, not such as become personal trusts in the hands of the executor. If an executor were, after the death of a testator, knowingly to convert stock held by the testator in trust, could he protect himself from a personal liability for such unlawful conversion, at the suit of the cestui que trust? The testator would have done no wrong, and, strictly speaking, no right of action would have accrued against him, whatever might be the responsibility devolved upon his estate. The distinction already alluded to in respect to money, held in trust by the testator, clears this subject of many of the difficult ties which have been suggested at the bar. It is said, that the claim for such money constitutes a legal demand against the estate; and the cestui que trust is, as to it) just like any common creditor. This is true, if the money is mingled, without any distinction, in the mass of the testator’s property, and even, if it remains in specie, separated from it, and held as the separate property of the cestui que trust, he may have a right to come in and claim as a general creditor; but whether he is bound to do so, may be a different question. In the former case, without doubt the statute of limitations will run against him; and a court of equity will, in such case, follow the rule of law. The general principle indeed is, that where there is a concurrent remedy at law and in equity, in whichever jurisdiction the suit is brought, the same bar may, if no other equity intervenes, be pleaded. The case of Heath v. Henly, 1 Ch. Cas. 20, seems to the contrary; but it is of doubtful authority, and I agree with Chief Justice Spencer (Murray v. Coster, 20 Johns. 576) in thinking it at war with the doctrine of Lord Hardwicke in Sturt v. Mellish, 2 Atk. 610. The true rule is laid down in Murray v. Coster, 20 Johns. 576. But, take the case, that the money has been invested in personal securities by the testator in trust, and kept separate from his general estate, and
Now. in this view of the case, it is very difficult to support the demurrer. The bill, if I do not greatly misunderstand its purport, does substantially, though certainly not in so exact and pointed a manner as it ought, assert, that Ivers did keep the trust property separate and distinct from his own, and did invest some of it in real estate and securities, &c. and did keep accounts and memorandums of it; and that the trust property has come to the possession of his executors. Now. if this statement be true, and upon the demurrer it must be taken to be true, the plainest case is made out for a bill of discovery against them. It is the common case of trust property, asserted to be in their hands for the benefit of the ces-tui que trust, of which he claims a discovery and delivery to his use.
Upon the whole, my opinion is, that so far as the demurrer to the bill is founded upon the statute of limitations in favour of executors, it cannot be supported: The defendant (J. L. Austin), as executor of Ivers, cannot shelter himself from answering by the interposition of that statute, as to the asserted trust derived, either under the executors of Trecothick, or the assignment of the Tomlinsons’ executor and heir. Lapse of time is sometimes applied in equity in bar of relief upon trusts; but that doctrine stands upon principles entirely distinct from those which regulate positive statute bars. Cholmondeley v. Clinton, 2 Jac. & W. 138; Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 152, 177, note.
The next objection, taken by the demurrer, applies to the defendant (J. L. Austin), as well in his individual, as his representative character. It is, that Treeothick’s will has never been proved, or administration granted thereon by any of the probate courts of Massachusetts; which is asserted to be indispensable to maintain a suit in our courts for any assets belonging to his estate. The same objection is made as to the Tomlinsons.
The general position stated at the bar, that no executor or administrator, appointed under a foreign government, can, in virtue of such appointment, sue in our courts, is admitted. The cases cited at the bar are conclusive on this point. [U. S. v. Simms] 1 Cranch [5 U. S.] 258; [Fenwick v. Sears] 1 Cranch [5 U. S.] 282; [Hallet v. Jenks] 3 Cranch [7 U. S.] 219; [Doe v. M’Farland] 9 Cranch [13 U. S. 151; 3 Mass. 314; 11 Mass. 257, 313; 9 Mass. 337; 1 Pick. 82; Toll. Ex’rs, bk. 1, c. 2, § 8, pp. 71, 72. If, therefore, this were a suit brought by the executors of Trecothick, as executors, to recover any • assets of their testator in the hands of the defendant, the objection would be fatal, unless the probate and administration, in the prerogative court of Canterbury, were conclusive upon the colonies ante-cedently to the Revolution, and ought now to supersede our local regulations under the circumstances of the present case. What the practice was before the Revolution, it is not very easy now to trace. Without doubt, full faith and credit were given in the colonies to all administrations under the authority of the prerogative court of Canterbury. Voluntary payments of debts, and receipts under such administrations, were of unquestionable validity, and released the debtors from farther claim. But this might well be, without supposing that such administrations entitled the parties to maintain suits in our courts. Such payments, voluntarily made to a foreign administrator, would now be held effectual in our courts, upon principles of national amity. This doctrine is supported by Atkins v. Smith, 2 Atk. 63, and still more fully and forcibly illustrated by the very able opinion of Mr. Chancellor Kent in Doolittle v. Lewis, 7 Johns. Ch. 45. But, though in practice it is not improbable, that many suits were brought by English administrators in our courts, there is reason to doubt, whether, if the point had been judicially contested, their right would have been supported. Lord Hardwieke, in Atkins v. Smith, 2 Atk. 63, said, that an administration taken out in England would not extend to the colonies in America. Burn v. Cole, Amb. 415, is to the same effect. The cases there cited prove, that the practice was to take administrations in the colonies, founded on those in England; and the doctrine established in that decision was, not that such administrations were unnecessary, but that they ought to be granted to the English administrator, and that the judge of probate
The principles, thus far discussed in respect to Trecothick’s estate, apply with more pointedness to that part of the case connected with the Tomlinsons. Tomlinson (the younger) was partner of Trecothick, and the latter, as survivor, was entitled to collect
The next ground of demurrer is the want of proper parties to the bill. The objection is, that the executors of Trecothick and Tomlin-son are not before the court, nor the trustees under Treeothick’s will; and that they are necessary parties to the bill. In a recent case, this court had occasion to go somewhat at large into the doctrine of parties. I allude to the case of West v. Randall [Case No. 17,424]; the principles of which decision have, in no small measure, been confirmed by the supreme court in Elmendorf v. Taylor, 10 Wheat. [23 U. S.] 167. I shall content myself with a simple reference to these cases, as containing the true grounds, upon which courts of equity act on the subject of parties. See, also, Quintine v. Yard, 1 Eq. Cas. Abr. 74; Walley v. Walley, 1 Vern. 487; Fell v. Brown, 2 Brown, Ch. 278.
Let us consider the case, in the first place, so far as the objection applies to the title derived under Trecothick’s will. By that will, four persons, who were also his executors. were constituted trustees of all his real and personal estate. The real estate was devised to them in fee in trust for the children of Trocothick in fee tail, if he left any (and in fact he left none), and in default thereof, in trust for the plaintiff in fee tail. The personal estate was bequeathed to them, after payment of debts and legacies, to be invested in real estates in England upon the same trusts. The bill alleges, that all the debts and legacies have been paid, except an annuity to Mrs. Hannah Ivers (the mother of the plaintiff), which her husband, James Ivers,. was authorized to pay out of the funds collected by him under his agency, and the payment of which was made one of the conditions in the agreement between him and the plaintiff, by which he retained those funds during his life. The bill further states, that all the executors and trustees are now dead, the Rev. Earl Apthorp having been the last surviving executor and trustee. The question here does not respect the real estate under the will, but that portion only which was personal, or ultimately turned into personalty, by the sales and collections in America. The bill does not state, that there is no executor or heir of the Rev. Mr. Apthorp now in existence, nor that, if there is; he resides out of the jurisdiction, nor that he refuses to take administration, or to become a party to the bill, which certainly were very proper averments to have found their way into the bill, so far as the facts would warrant them. Now. in respect to the executors of Treco-thick, as executors, I do not know that they are necessary parties to the bill. They can be so only, so far as funds might be wanting on their part to pay debts or legacies. But, supposing these all paid and extinguished, and the very lapse of time might create a presumption of this, even if the bill did not, as it does in fact, assert a payment and ex-tinguishment of them, they do not seem to have any interest in the controversy; at least not such, as that the court might not get over the difficulty of want of parties, if they were without the jurisdiction, and refused to authorize or seek an administration here. But it is the less important to deal with this point, because being at the same time trustees under the will, they must be deemed by operation of law to take all the personal estate in their character of trustees, as soon as the debts and legacies were paid. The Rev. Mr. Apthorp then became, as surviving trustee, the sole possessor and owner of all the funds collected under the agency in America. In the hands of his agent, the funds are to be considered the same as in his own hands. If any person then is to be a party, it' is the executor of the Rev. Mr. Apthorp. He is to be a party, as succeeding to the trust, and compellable to apply the funds to the original purposes of Treeothick’s will.
This brings the court to a very material consideration, and that is, how far the plaintiff, as cestui que trust, has a right to control the application of the trust funds to the purposes of the will. Has he a right to a decree for the payment of the funds to himself? Has he a right to prevent them from being invested in real estate upon the trusts in the will? The general principle in chancery is, that where money is directed by articles or by will, to be laid out in land, the party, who would have the sole interest in the land, if purchased, may elect to have the money paid to him, and that it shall not be laid out in land. That doctrine was recognized in Benson v. Benson, 1 P. Wms. 130, and Short v. Wood, Id. 471. See, also, 2 Atk. 452; 1 Atk. 12; Saund. Uses, c. 3, § 7, art. 14; Chaplin v. Horner, 1 r. Wms. 485; Craig v. Leslie, 3 Wheat. [16 U. S.] 363, 578. But there is this distinction, that, if he is tenant in fee simple of the land, when purchased, he has a right to the money absolutely; but if he is tenant in fee tail, with remainders or reversion over, then the court will not interfere, and give him the money, because, though tenant in tail may bar the remainders, by a common recovery, yet. as a recovery can only be in term, .the court will not deprive the re
One circumstance, however, of considerable significance as to this point, is the allegation in the bill of an agreement between Ivers and the plaintiff, that Ivers should hold the funds in his hands during his life, and have the interest thereon, paying the annuity to the plaintiff’s mother. But it is not said, that this agreement was with the consent of the trustees, or acquiesced in by them. It is only stated, that Ivers did agree, that his executors should account to the plaintiff for the principal after his, Ivers’, decease. If this was with the assent of the trustees, it would present one aspect of the case strongly in favor of the plaintiff, though Moor v. Blagrove, 1 Ch. Cas. 277, looks the other way. See Russell v. Clarke’s Ex’rs, 7 Cranch [11 U. S.] 69, 98. If .without their consent, it would give rise to a question, how far the court would dispense with parties, where the plaintiff sought to claim the funds, if not in violation of the trust, at least without giving the trustees an opportunity of being heard. I advert to these considerations in order to show, that the texture of the bill is not exactly such as enables the court to see its way to any final and definitive result. The difficulties may. not be such as to call upon the court to dismiss the bill; but they show, that some amendments are necessary. But the demurrer goes, not merely to the claim under Trecothick’s will, but to the equity of the plaintiff, as assignee of the Tomlinsons. The sufficiency of the assignment is admitted by the demurrer. The only question is, whether, upon such admission, the assignors, that is, the executor of Treeothick and the executor of the Tomlinsons, are necessary parties. If they were without the jurisdiction, and it were so averred in the bill, I should upon the demurrer have great difficulties in deciding, that they were necessary parties. The rule in equity seems to be, that executors and administrators ought, in" general, to be parties to suits affecting the estates of the deceased; but this rule may be dispensed with when there is no administration, or the party is without the jurisdiction. Cooper, Eq. Pl. 35; 2 Atk. 51, 510; 1 Vern. 95; Finch, Prec. 83; Milligan v. Milledge. 3 Cranch [7 U. S.] 220.
In respect to cases of assignments, it has been argued at the bar that the assignor is always a necessary party, and the causo cannot go on in the name of the assignee without him. For this purpose the case of Ray v. Fenwick, 3 Brown, Ch. 25, has been relied on. That was the case of an assignment of a bond by an obligee, since deceased, and nobody had administered to him. An application was made for a ne exeat against the obligor, at the suit of the assignee. The lord chancellor (Thurlow) refused it, “because the suit, without a representative of the original obligee of the note (bond), must be dismissed for want of parties.” This is the whole of the report; and it is certainly very unsatisfac
The true principles to be adduced from the cases seem to me to be, that the assignor need not be a party, where the assignment is absolute, and he has no interest, and is not, by the nature of the case, brought under any new liability. If this be true generally, a fortiori, the assignor, even if a proper party, might be dispensed with when out of the jurisdiction of the court. In the present case the executors of thé Tomlinsons have not the legal property in them, for Treeothick was the surviving, partner, and entitled at law to collect the effects and account to the executors of the Tomlinsons. The latter, therefore, had an equitable interest only in the property, and a legal right to an account. But, as the bill asserts, that the assignment was made with the consent of the trustees and executors of Treeothick, which, upon the demurrer, must be taken to be true, that consent appears to me at present sufficient to dispense 'with the necessity of making either the one or the other parties. The ease of Moor v. Blagrave, 1 Ch. Cas. 277, does not satisfy my judgment, that a contrary doctrine is sound, if that case cannot be distinguished from the present.
Many other topics have been brought into discussion upon the assignment, with which it is not now necessary to meddle; and sufficient unto the day is the evil thereof.
My opinion upon the whole is, that the demurrers are too broad, and not well taken in their matter and extent, therefore they must be overruled. The’ bill also appears to me very defective in its structure and averments; and before it can be brought to a successful hearing, it ought to undergo many amendments, even if the merits were altogether in its favour, upon which at pres