Wheelock v. Pierce, 60 Mass. 288

Wheelock v. Pierce

60 Mass. 288 | Mass. | 1850

Shaw, C. J.

The suit commenced by Bayley, Poor, and Richardson, against Gray, in which the defendant was sum*291moned as trustee, having been discontinued by the consent of all the parties, this case stands as if no suit had been com« menced.

The case then is this; the defendant received from Darling and Gray, residing at Tahiti, a bill of exchange, with directions to sell it, and from the proceeds to pay the plaintiff a certain sum. He received and collected the bill, and gave notice thereof to the plaintiff. The authority and direction of Darling and Gray, to pay the money when collected to the plaintiff, were not revoked nor countermanded. Primá facie, therefore, the defendant is liable in this action, as for so much money had and received to the plaintiff’s use.

Do the facts stated constitute any defence ? It appears that a bill of exchange was forwarded by Darling and Gray to the defendant, which was purchased by them out of the proceeds of the estate of James H. Wheelock of Tahiti, deceased, as executors under a will made and proved according to the usages of that place. It further appears, that in this state, Richard W. Bayley obtained letters of administration on the estate of James H. Wheelock, and as such administrator, demanded these funds of the defendant; who alleges that he was bound to pay them over to Bayley, and that this is an answer to the plaintiff’s claim.

We are not aware upon what ground of jurisdiction the judge of probate granted administration, unless it was that the funds in question were assets of the testator, in this commonwealth. But perhaps that is not material. Supposing the letters of administration properly granted to Bayley, was the defendant bound to pay over the funds to him ? The court are of opinion that he was not. This sum was not assets. The defendant received no property from the testator; nor was he indebted to him, or in any way a debtor to his estate. Fay v. Haven, 3 Met. 109.

A creditor of the testator could not thus arrest the funds, m their transmission from the executors of the will at the place of the testator’s domicil to a third person. Story, Confl. L., §§ 513 to 518. Darling and Gray had authority to collect and receive all the assets of the estate in Tahiti; they had done *292so, and the estate to that extent was administered. They seni the bill to their own agent, and he was responsible to them only for its appropriation. Currie v. Bircham, 1 D. & R. 35; Logan v. Fairlie, 2 Sim. & Stu. 284. This fund, therefore, had ceased to be assets, to be collected and administered under an administration here in its nature ancillary.

Judgment for the plaintiff.