137 A. 334 | Vt. | 1927
This is the last of the four cases against this defendant, heard together in this Court, but tried separately below. The plaintiff had judgment below, and the defendant excepted.
Earl J. Walker, a minor represented here by this guardian, E.H. Johnson, was a residuary legatee of the Eliza P. Bailey will; as such he was decreed the sum of $1,917.51, on November 5, 1924. This sum has not been paid, and the funds of the estate have been converted by the defendant.
It is found in this case that the property shown by the defendant's inventory came into his possession as executor, and avails thereof were originally deposited in the Marble Savings Bank to the credit of the account referred to in the other cases; that defendant's private funds and funds belonging to other estates went into this account; that on November 5, 1924, the defendant filed his final account showing cash on hand for distribution $9,587.55, of which the sum named above was decreed to this plaintiff; that before this suit was brought, the defendant used the money in his own affairs, leaving nothing for this plaintiff. These findings present a novel situation. It is not here found that the defendant had this money on November 5, 1924, though the court refused to find that he had used it up prior to that date. So this fact — whether his conversion was before or after the date named — is left unfound. The burden of proof was on the plaintiff to show that the defendant's misappropriation was made at a time and under circumstances enabling him to maintain this suit. The lack of the finding referred to presents an entirely different question of law than was presented in any of the other cases. That question is this: Can a legatee, after final decree, maintain an action of tort against an executor for a misappropriation of the money of the *364
estate that took place prior to the decree? In such a case, the decree has nothing to act upon, and, assuming that the money has been so disposed of that it cannot be traced or followed, the legal title never reaches the legatee. So the doctrine of Reed v.Hendee,
If an executor or administrator stood like an ordinary trustee in such circumstances, we might have no difficulty in reaching a conclusion that this action could be maintained on the authority of Snyder v. Parmalee,
It is said that by the early law of England, one prejudiced by such a devastavit as is here involved was only a simple contract creditor of the defaulter, 3 Williams Exrs., 2161; Charlton v.Low, 3 P. Wms. 331; 1 Com. Dig. 352. This rule seems to have arisen from an early day anxiety lest, if the law bore too heavily on an executor, it would be difficult to find persons who would assume the responsibilities of such a trust. However this may be, it is quite apparent that our Legislature does not share this fear, for more than forty years ago it passed an act making the conversion and embezzlement of the funds of an estate by an executor a felony; and such has been the law of this State ever since. G.L. 6876.
May this action be maintained by force of this statute? Though the statute does not in terms give such an action to one who suffers by such misconduct, the answer to the question propounded depends upon the intent of the Legislature in passing the act; and that intent is to be determined by the application of the rule approved in Wlock v. Fort Dummer Mills,
But it is said that the complaint herein is not predicated upon and makes no reference to the statute. It is true that there is nothing in the complaint to indicate that the suit is predicated upon the statute. But it sets up all the facts required to make a case thereunder, and as a matter of pleading, no direct reference to the statute was required. Wescott v. Central Vt.R.R. Co.,
*366Judgment affirmed.
