Wheeler's Appeal from Probate

70 Conn. 511 | Conn. | 1898

Andrews, C. J.

The Court of Probate held that Mr. Wheeler was not yet entitled to be qualified as trustee under the appointment in the will of his father. The language of this decision admits that Mr. Wheeler is a fit person to be such trustee, and that the bond which he tendered is sufficient. At what time, or upon the happening of what event he will become entitled to be so qualified, is not indicated. Mr. Wheeler, as trustee, had a vested interest in the remainder estate as soon as the will became operative. Being a fit man and offering a sufficient bond, and there being no reason shown why he is not now entitled to be qualified, that court manifestly erred in not accepting his bond and permitting him to become qualified to act.

The brief in this court of the respondents seeks to nullify that error. It mentions three reasons why Mr. Wheeler is not<yet entitled to become the trustee. The first is that he asks alone, not joining with the other trustee named in the will. This is a reason not urged in the Superior Court, and it is obviously untenable. Where two persons are named as trustees and one declines or fails to qualify, the other may qualify alone and perform the whole trust; Lewin on Trusts, *237; 1 Perry on Trusts, § 273; Ellis v. Boston, etc., R. Co., 107 Mass. 1, 13 ; just as where two persons are appointed trustees to execute a trust and one of them dies, the other becomes the sole trustee.

The next reason urged is that the remainder estate devised to the trustees has not yet come into their enjoyment, the preceding life estate being still outstanding. But the devisees of the remainder estate had a vested interest in it as soon as the will was established; and there may be occasions when their active interference will be required. This they could not do unless qualified as trustees. It is possible that the life tenant may commit waste, and then it would be the business of the trustee, as remainderman, to require security of her for the benefit of the remainder estate. Terry v. Allen, 60 Conn. 530, 541, 542. In the event of her death or remarriage circumstances might exist which would make it important that immediate possession should be taken by the trustee. These are some of the reasons why the trustee should be qualified at once, rather than that his qualification should be postponed.

The third reason, and the one which perhaps influenced the Court of Probate, is that the estate is in the hands of the administrator with the will annexed. This reason wholly misconceives the powers and duties of an executor. An administrator with the will annexed simply finishes the work of the executor, and has for that purpose the same powers as the executor. In the will of Joel B. Wheeler the executor had no powers other than such as the law attaches to that office. No special powers were confided to him. The duty of an executor is to settle the estate, and in ordinary cases, of which this is one, that is his whole duty. Our law is solicitous that the estates of deceased persons shall be settled as soon as it can conveniently be done; Webster v. Merriman, 9 Conn. 225, 228; so that the property shall as soon as possible come into the possession of those who are to have the enjoyment of it. It is no part of the duty of an executor or administrator to carry on the business of the deceased. Hallock v. Smith, 50 Conn. 127. An executor has no title to, or possession of, the property of the testator, except for the purpose of closing the estate and settling its affairs. In the present case the duty of the executor was exceedingly simple. He was to pay the debts and then distribute the estate to those persons who were under the will entitled to it. The statute, § 581, directs the Court of Probate to limit a time not exceeding twelve months in which all claims must he presented to the executor, or he barred of recovery. Presumably such an order was made in this estate. The executor in this case was qualified on the 22d day of January, 1891. That the estate remains unsettled six or seven years after that date would, unexplained, seem to indicate that the executor had been inexcusably dilatory, or that the Court of Probate had been remiss in not calling on him to settle his accounts. In no event does he have, nor can he have, any such title to or care of the remainder estate as prevents the trustee from being entitled to qualify and act.

There is no error in the judgment of the Superior Court.

In this opinion the other judges concurred.