12 Mass. 198 | Mass. | 1815
This case comes before us as the Supreme Court of Probate, on an appeal from a decree of the Judge of Probate for the county of Suffolk, by which the appellant, who had been appointed one of the executors of Edward Tyler, was removed and discharged from that trust.
The Judge of Probate having determined that the said debt was assets in the hands of the executor, to pay debts and legacies ; and also for distribution to the next of kin, if not disposed of in the will, further determined, that, as the appellant intended to contest his liability in law, he was an unsuitable person to remain executor ; and, under the authority of the statute of 1783, c. 24, § 10, removed him from that trust.
* It has been objected, in the first place, on behalf of [*200] the appellant,, that, admitting the decision of the judge to be correct, as to the liability of the appellant to pay the debt, yet the power of the judge was not properly exercised ; as the fact of his being a debtor did not render him unsuitable, within the meaning of the statute, to execute the trust reposed in him by the testator ; he having given bond for the faithful execution of his trust, and being liable upon that bond.
The words of the statute, relied on as giving the authority under which the judge decreed, are, “ When any executor or administrator shall become insane, or otherwise incapable of, or evidently unsuitable to discharge, the trust reposed in him, the judges of probate are em powered to grant letters of administration,” &c. Although the statute seems predicated on the case of one executor only, yet it is within its reason and equity, that, if one of two or more executors should fall within the disabilities specified, the remedy should be applied, although letters of administration may not, in such case, be necessary.
We think, also, that the principle adopted by the judge of probate, that the executor remained liable for the debt due to his testator, notwithstanding the trust committed to him, was correct; and that a determination to resist payment of such debt, until compelled by a judgment of court, may, in some cases, be deemed a sufficient cause for removing such executor ; it being unsuitable, that he who represents the estate, and without whose agency a suit cannot be conducted, should remain in office, when such suit may be necessary to coerce the payment of the debt. But it may not always be necessary to take this step. For, as the executor has given bond for the faithful execution of his trust, and, as he must be supposed actually to have received, for the purposes of his trust, a debt due from himself,
The statute gives a very broad discretion to the judge, evidently intending not to define or limit the disabilities which should be the causes of removal; but to leave room for the application of the power to all cases which may occur to render the execution of a will, or the administration of an estate, perplexed or difficult.
If it be said that the testator reposed confidence in his executor, notwithstanding he must be presumed to know that he was indebted to him; the answer is, that he would presume that a man, in whom he so confided, would not refuse to account for a debt which admitted of no fair dispute ; and, therefore, would not, merely on account of his being his debtor, decline appointing him his executor ; especially as he is also presumed to know that there was power in the judge of probate to remove him, if the interest of the estate should require it.
There does not appear to have been any definite decision in this State upon the question, whether the appointment of a debtor executor of a will is a discharge of the debt. It may be proper, therefore, to enter rather more at large into the discussion, than seems to be necessary merely to settle the point; which may be done sufficiently, we think, by our own statute.
The authorities cited by the counsel for the appellant seem to leave no doubt, that formerly, by the common law of England, when a debtor was made executor, the debt was discharged or released,
But, to avoid the manifest injury to creditors, by permitting a testator thus to take from the common fund the means [* 202] *of satisfying his debts ; the same law held that the debt, thus considered to be paid, should be assets to pay the testator’s debts, and that the executor should be held to account for and pay over the same.
This liability, however, did not exist in favor of legacies, or of the residuary legatee, or of the next of kin ; unless, by some provision in the will itself, it should appear that the testator manifestly intended that the executor should not be discharged ; as, when the testator
It was also a principle of the common law of England, that all the undevised personal estate of the testator went to the executor as his own property, when no residuary legatee was appointed ; unless there were some devise or bequest to the executor, from which an inference could be drawn against the testator’s intention so to dispose of it. The same law applied to administrators, after paying debts, legacies, and funeral charges, until the statute of 22 & 23 Car. 2, c. 10, made perpetual by the statute of 1 Jac. 2, c. 17, which directed distribution to be made of the residue to the next of kin ; leaving the right still in an executor to retain to his own use all the goods of the testator, remaining after paying debts, legacies, and funeral charges.
This principle, however, has become obsolete, in consequence of the application of rules and principles of equity in the courts of chancery, where it has been frequently decided,
We apprehend that the law has been always, or for a long time, settled in this country according to these principles ; and that this was, in fact, the law brought hither by our ancestors.
* Executors and administrators are upon the same foot- [* 203] . ing, both being trustees for the legatees or next of kin ; unless, in the case of an executor, it should manifestly appear from the will itself that the testator intended him a benefit. As early as 1703, an act of the provincial legislature passed, in effect abolishing all distinction between an executor and an administrator, as to their interest in the estate of the deceased. By the act of 1 & 2 Ann. c. 5, § 1, it is provided, that, in wills, where, after payment of debts, and of any certain particular legacy or legacies, the residue or remainder of the estate is bequeathed generally to any one or more persons, other than the executors themselves ; in every such case an inventory of the estate shall be presented upon oath, and no bond be accepted in lieu thereof; and the executors shall be liable to account as administrators are, by law, obliged to do ; and a right of action is given to any residuary legatee against the executors.
From the time of the passing of this act, whatever may have been the law of the country before, we apprehend that no debtor, appointed an executor, was, by such appointment, discharged of his
A construction of this statute, unfavorable to the appellant’s claim, appears to have been given by the Court, in the case of Heys & al., Ex'rs., vs. Jackson & al.
* It might easily be shown that this provision of the [ * 205 ] law is more conformable generally to the will of a testator, than the appropriation of his effects under the old English common law. If a testator intended to extinguish the debt of his executor, it would be simple, natural, and easy, to express that intent in clear and positive terms ; and, in most cases, it would be so done, instead of leaving it to be inferred from abstruse principles, with which testators in general are unacquainted.
In the present case, two executors were appointed, neither of whom appears to have any claim by kindred upon the testator’s bounty. What reason can be given, why he should have given one a debt of two or three thousand dollars, and nothing to the other ? He appears to have had equal confidence in both, and he makes no provision for either ; trusting, undoubtedly, that, from motives of friendship, for the compensation allowed by law, they would accept the trust, and knowing that either or both of them had the right to decline. It cannot be supposed that he thought so considerable a debt would be discharged by his making his debtor his executor. He has also carefully enumerated his collateral kindred, who, he intended, should have his estate after payment of his debts and legacies ; and he makes no exception of the debt due from the appellant, which he would naturally have done, if he intended so to diminish his estate. Upon the whole, we see no reason, either in law or equity, to consider the appellant as discharged from his debt to the testator.
Since, however, the appellant has given bond, with which those concerned in interest are satisfied, and this debt must be considered as received by the appellant, and so his sureties accountable ; it is not necessary that he should be removed. By consent, therefore, the decree of the Judge of Probate is reversed, and the cause remitted to him for further proceeding therein according to law.
Roll. Abr. 920, §§ 12, 13.— Godolphin’s Orphan's Legacy, 113. — Sir J. Needham’s case, 8 Co. 136. — 1 Salk. 300. — Wankford vs. Wankford, Yelv. 160.
1 Ch. Ca. 292. — Cases Temp Talbot, 240. — 4 Bro. Parl. Cases, 179. — 3 Bro Ch. Ca. 110. — Yelv. 160. — 3 Rep. in Ch. 89. — 1 Rep. in Ch. 138. — Ambler, 769. — 3 Bro. Ch. Ca. 28.
Stevens vs. Gaylord, 11 Mass. Rep. 256.
6 Mass. Rep. 150.
Hayes et al. vs. Jackson, et al, 6 Mass. Rep. 149. — Stevens vs. Gaylord, 11 Mass. Rep. 256. — Bigelow vs. Bigelow, 4 Ohio Rep. 138. — Freakly vs. Fox, 9 B. & Cr. 130. — Wankford vs. Wankford, Salk. 299. — Cheetham vs. Wood, 1 B. & P. 630. — Wood vs Johnson, Cox R. N. J. 153.