37 Ky. 447 | Ky. Ct. App. | 1838
delivered the Opinion of the Court.
This is an action of debt against Philip Love and Bryant T. Young, executors of William Love, deceased, suggesting a devastavit.
Love failed to plead; and Young pleaded plene ad-ministravit, which being traversed by a general replication, a jury sworn to enquire of damages as to Love, and to try the issue formed on Young’s plea, found a general verdict for the debt in the declaration, and also for the interest due thereon, in damages: for which the Court rendered a judgment.
In the revision of the judgment, three questions are - . . presented: first — is the verdict good? second — did the Circuit Judge err in giving instructions to the jury? and, third — did he err in overruling an instruction proposed by Young?
did not authorize the judgment. Two questions are involved in the issue: first — whether Young had legally administered all the assets which had ever come to his First. The verdict is not responsive to the issue, and hands as an executor; and, secondly — if he had not so administered fully, what amount of the assets in his
Wherefore, the Circuit Judge erred in overruling a motion to arrest the judgment for a fatal defect in the verdict.
Second. An'attempt was made to convict Young of a devastavit, on the ground that, though, after he was qualified as an executor, he had been generally passive; yet he was at the sale of the testator’s effects; acted as clerk; permitted the notes of the purchasers to be made payable to his co-executor and himself jointly, and received from other purchasers some of those notes, and some small sums of money, which he forthwith handed over to Love, who appears to have been the more active, if not the only acting executor; and also, that he bought and received at the sale, a part of the property there sold, at the price of about one hundred and three dollars, and had received from his co-executor
To resist the prima facie effect of most of these facts, Young attempted to prove that he had never acted as executor, and that, on the day of the sale, he, like others who were employed in similar offices, was the mere agent of Love, who controlled the sale, and acted alone as sole executor.
Upon these facts the Court gave to the jury the following instruction: — “That if the jury believe the sale of “property was made in the presence of both executors, “ the money which was paid, was paid to Young, and the “sale notes taken to both the executors, with the “knowlege of Young — he is answerable for the amount “ of the sales. But that, if they believe Young was “ passive, and did not act, he is not responsible for the “ assets wasted by Love. But if he acted in the busi- “ ness at all, he is liable to the extent of the assets “ which came into his hands; and that, even if he act- “ ed as the agent of Love, being executor, he is liable “ as executor for the amount of assets which came to his “ hands as such.”
This instruction is certainly very ambiguous, and might have deluded the jury. It would be difficult to tell what the Circuit Judge meant in the latter part of the instruction, in which he decided, first — that if Young had acted “ in the business at all,” he was liable “ for the assets which came to his hands;” and, secondly— that “ even if he acted as the agent of Love” he was liable as executor, for the assets which had come to his hands “as suck,” If the Judge intended to say only, that if Young had acted at the sale, as executor, he was liable for the assets sold at that sale, so far the instruction was undoubtedly correct. But such is not the true consistent ¡import of so much of the instrugtion as decided that Young was liable “ if he had acted in the business at all;” which certainly should be understood, (when applied to the facts which had been proved,) as meaning that, if he had acted even as Love’s agent at the sale, he was liable. And the next and last member of the instruction should be understood
But if he acted at the sale as a clerk only, he is not, as executor, liable for the property which was sold, excepting so far as he received the proceeds of the sale. lb.
The promissory notes given for property sold were not assets. The assets having been converted by the sale, those notes were the personal property of the executors, to whom they were made payable; and therefore, as they were kept and appropriated by Love alone, the mere fact that some of them passed through Young’s hands to those of Love, as his co-executor, should not, per se, subject Young to liability for the value of them. lb.
Nor is Young necessarily liable for the devastavit by his co-executor, in consequence of his not objecting to the execution of -the sale notes to the executors. This fact may tend strongly to show that he was acting as an executo’r. But it is susceptible of explanation by proof of other facts; and is not, therefore, conclusive. The notes may, in fact, have been thus written without his agency or privity, and merely for conformity to the
The obvious deduction from the foregoing considerations respecting the instruction is that, though partly right, it was too ambiguous, comprehensive and peremptory; and must, therefore, be' deemed delusive and erroneous.
As to the money which come to his hands, he is, in' judgment of law, responsible, because it was assets; and therefore, it was his duty, as executor, to take care of it when he once had control over it.
For the same reason, he should be held responsible, as executor, for the goods sold and delivered to himself,'. unless he paid for them in a debt against the testator, of ... . “ . . equal dignity to that due to Wieklifle. If he paid money for them, then he parted with that which was assets, in his hands as executor, and if he never paid for them, or paid by setting off a simple contract debt, he was thereby guilty of a devastavit. And, for the like reasons, he may be chargeable for a devastavit, to the extent of the amount received or retained by him, in satisfaction of his open account against the testator.
As to other assets never actually in his hands, his liability for the waste of them by his co-executor, depends on the question whether, as a matter of fact, he r 1 .... . ever exercised any executorial' authority over them, or how far, by any voluntary act, he facilitated the acquisition, or aided in the conversion of them by bis co-executor. And these are matters of fact which the Circuit-Judge ought to have left to the judgment of the jury, by an intelligible and' hypothetical instruction.
Third. A slave (Bob) having been sold under an execution on a replevin bond executed by Philip Love as principal and by Young as his surety, in discharge of a r ° J ’ r , judgment against them, as executors, posterior m date to that of Wieklifle, the Circuit Judge instructed the 7 °
We cannot concur in this instruction. If Young never had Bob in his possession as an executor, and had no agency in subjecting him to sale under the execution, we can percieve no reason why he should be made liable for a devastavit, merely on the ground that, his co-executor directed or authorized the sale by the sheriff in satisfaction of a judgment against both of them. His co-executor had a right to pay the amount of the replevin bond. And even if that executor misapplied Bob as assets to that end, such a devastavit should not implicate Young, any more than any other conversion of the slave by the same executor to his own use, or to any other purpose, without his co-operation in the unlawful act. The question is who subjected the slave to the execution? by whose act was he converted? If Young was passive, and Bob was never in his hands as assets, he is not, as executor, liable for the conversion.
It does not appear that, as executor, he ever had possession of Bob; or that, in any way, he exercised any dominion over him, or aided his co-executor in getting possession of him."
Fourth. Young having read to the jury a written agreement between himself and the testator, purporting to be a settlement, acknowledging the receipt by the latter of a fraction over three thousand dollars, in money and land, “ from” a partnership “ concern,” in which he was an agent, and Young was the principal partner — the Circuit Judge refused to instruct the jury that the contract was evidence of an indebtedness which would have authorized a retainer by Young as executor.
And we concur with the Circuit Judge in this particular. A more incomprehensible writing could not be easily devised or imagined. But ambiguous as it is, we are inclined to construe it- as being an acknowledgment that W. Love had in his hands a certain sum which he had received as agent of the “ concern.” But whether he was entitled to the whole of it, or how
This contract, therefore, were there no other objection to it, furnished no available evidence under the issue.
But, for the other errors which have been suggested, the judgment is reversed, the verdict aside, and the cause remanded for another trial.