E. V. Sparhawk & Others v. The Administrator of Ozias Buell & Others, 9 Vt. 41

Redfield, Chancellor delivered the opinion of the Court. The court have not been so fortunate as to come to an unanimous determination in the present case. They deem the case of much importance, both in regard to the principles involved, and the amount in controversy, and it is to be regretted any diversity of opinion should exist in relation to the judgment now given. A majority concur in the following results.

The testimony does not sufficiently show, that Phineas Lyman was in such circumstances of poverty, as to warrant him before the time of his failure in the year 1824, in appropiating the property of his children for their maintenance or education. Before the time he went into trade, in 1818, he seems to have been an attorney, doing a small business, at that time reputed to be worth about five thousand dollars, owning a comfortable dwelling and outbuildings and lot, worth fifteen hundred dollars, which he continued to own till the time of his failure.

In short, till the time of his failure, he was in easy circumstances to support and educate his family in an independent manner. And although during all this time, he might in fact, have been bankrupt, still, this question must be determined by his apparent and not his actual means. We ought not now to allow the defendants to claim to have expended this legacy in the support, maintenance and education of the legatees, unless, at the time the expenditures were in fact made, this court would, on have decreed, that such expenditures should be made out of the fund, from which it is now attempted to be drawn.

This court would never have allowed the property of these orators, while infants, under the control of a parent of ample ostensible means for their support and education, to be expended for that purpose. It is the duty of parents to maintain and educate their infant children, “ they being of sufficient ability.” The benevolent object and true intent of such bequest, as the present, would be almost wholly defeated, if parents were permitted to expend the same without giving any security to account for it when the child should come of age.

This court will order the guardian of infants, under suitable security given for the faithful discharge of the trust, to expend a reasonable amount of the property of the ward in his maintenance and education, if the ward is without parents, or they are wholly unable to maintain and educate their children in a manner suitable to their reasonable expectations, and the court no doubt would allow a deduction for pant maintenance, under the same circumstances. This is not the present case.

And it does not appear that Lyman, or his children, up to the time of his failure, ever supposed that he was expending this legacy in their support or education. The children were educated respectably, but just as they would have been, had this legacy never been made. Since the failure of Lyman, there is no pretence that any portion of this legacy has been expended by him in the education of these children.

There does not appear to be any evidence, that Lyman intended Charles’ wages, which he was permitted to receive and appropriate,' to go in lieu of his share of this legacy, and if such had been the expectation of the father, and even of the son, he would not be bound by it. What is said of the education of the other children is a sufficient answer to this claim.

It seems to be admitted by the answer, the proois and arguments, that the defendant Buell, who is the only defendant that contests the claim of the orators, accepted the trust imposed by, and made probate of, the will, and took possession of property of the testator, to an amount more than sufficient to pay the debts due from the estate, and pay all the specific legacies, including the one now in controversy. ^ is an admitted principle that specific legacies ar e to be paid before any distribution is made to the residuary legatees, or to the heirs.

A considerable amount of the funds, once in the hands of Buell, has actually gone to the residuary legatees. It is admitted and proved, that these legacies have never been paid tQ tjie ]ega{;ees. It was as much the duty of Buell, as of any other of the executors, to see that this legacy was paid. He had the means of paying it, and had he in any way exonerated himself from this obligation ? It is true that the amount of this legacy has gone into the hands of Lyman for the purpose of meeting this object. But the evidence does not show, that Lyman took possession of these funds without the consent of Buell.

The notes and other property, which he did obtain without the consent of Buell, would not exceed the amount of his own debt, which he had a right to retain. The other property, which went into his hands, must be considered as having been originally in the joint possession of Buell and Lyman, and, in contemplation of law, to have gone into Lyman’s possession by permission of Buell. Under these circumstances, it would hardly be contended, that Buell could exonerate himself from liability, unless by showing what was equivalent to payment of this legacy.

One executor is not indeed liable for the devastavit of another joint executor, in regard to goods which have never been under his control, but, if he permit funds, once in his hands, to go into the possession of his co-executor, and he squanders them, he is liable. And, this is upon the ground that each executor is liable for the faithful discharge of the joint duties, but not of the several duties.

Hence, it is very apparent, that the mere fact, that the funds have gone into the hands of Lyman, for the purpose, of paying this legacy, and which he promised to apply, but wasted, is no answer in the case of Buell, to the claim of the orators. Lyman was the last man, who should have been permitted to have the control of these funds, unless under regular appointment and proper security. The relation of parent and child is one of authority and unlimited influence on the one part, and obedience and dependence on the other. And the inequality of this relation is not limited, in any sense, to the term of minority.

Hence, it is unsuitable that the property of the child, which the donor intended should be separate and independent of the parent, should be under his control, in any sense. Courts of probate, or chancery, m appointing guardians to take charge of the property of infants, would not, in a prudent discretion, ordinarily select the parents for guardians, after the age of nurture is passed. This disposes of another argument urged by the defendants’ counsel, that Lyman, as natural guardian, had a right to the control of the separate property of his minor children.

This would make the legacy in the present case virtually vest in the father, which evidently was not intended by the testator, and whose intentions, no court would be thus warranted in perverting, unless for very sufficient reasons. Upon two grounds then, we think that Buell was originally bound to see to the payment of this legacy, whenever the legatees should come of age, or should have a guardian properly appointed. 1.

That he had either the separate or joint control of all the funds belonging to the estate, except what Lyman had a right to retain on his own debt, and, 2d. even if Lyman had obtained funds sufficient to pay this legacy, without the consent of Buell, and which had never been under his control, still, as Buell had funds over and above these, more than sufficient to pay this legacy, and which have since gone to the residuary legatees, he should have appropriated them first to the payment of this specific legacy, and let the residuary legatees pursue the funds in the hands of Lyman.

If it be supposed that this involves the absurdity, that each executor may retain the amount of each distinct legacy, and that the residuary legatees might as well call upon Buell for the amount in his hands, as to call upon Lyman; it will be perceived that the apparent absurdity results from the obligation of a joint administration, which makes each executor liable for the acts of all the other executors. And had Buell wished to exonerate himsélf, he must have compelled the application of all the funds which he had put into Lyman’s hands, as well as to apply those in his own hands.

It now remains to examine the several grounds, upon which the defendant Buell claims to be no longer liable to the demand of the orators. 1. It is said this claim is barred by the statute limitation of all claims, not presented to the commissioners on estates represented insolvent, the commission on the estate of Buell being now closed.

But when it is considered, that at common law the remedy for the recovery of a legacy is in Chancery, and that h is now held, whatever might have been the earlier doctrine, that no action at law can be sustained directly for the recovery of a legacy or distributive share in an estate, it could hardly be said that the orators had a full remedy at law. If not, they might elect to pursue their claim in Chancery, as they did, the bill being brought pending the commission, when clearly no bar had attached upon the legal remedy, if any existed.

But in analogy to the decisions in England, and in those States where courts of Chancery exist, we are inclined to hold that the appropriate remedy of the orators is only in Chancery. Of course they could have had no remedy before the commissioners, and have lost none by not presenting the claim to them. The cases in Connecticut and New Hampshire Reports, where it is held that a legacy may be recovered at law, seem to have been, in some measure, principles adopted ex necessitate, to help out an imperfect system of Chancery.

A claim, which is not presented at the time of the commission being closed, or which is not strictly a legal claim, is never barred. Jones v. Cooper, 2 Alk. 54. Blackmer v. Blackmer, 5 Vt. 355. 2. The defendants insist upon the statute of limitations of eight years, as a defence to the orators’ claim. It is undoubtedly true, that a- court of equity will not lend its aid to revive claims barred at law by the statute of limitations, or lapse of time.

Hence, if the orators claim be of such a character, that it comes within the provisions of any of the statutes of limitations, and the term prescribed has'run, the claim cannot be asserted in equity even. But statutes of limitation operate upon the remedy, and not strictly upon the debt. If a party have two remedies, which are distinct and independent, although for the same debt, as a promissory note or bond for his debt,, and a mortgage security upon land, and either be barred by the statute of limitations, he may still pursue the other. Reed, Admr. of Craigin v. Shepley et al. 6 Vt. 602. Belknap v.

Gleason,. 11 Conn. 160, and authorities there' cited. But from what has been already said, it will appear that the court do not hold a legacy to be in the nature of a debt, owing by the executor and by him detained ; and if it were, the limitation would be six years,, and not eight years, as pleaded. It will be equally difficult to perceive upon what ground this claim can be treated as a matter of covenant, on the part of the executor, unless it be the bond given for faithful administration, which has been decided not to be within thatclause of the act of limitations. Probate Court v. Cnandler, 7 Vt. 111.

It is not necessary to say what presumptive limitation court might or might not be inclined to apply to a case, where the requisite time had elapsed since any of the claimants came of age. It was held in the case of Mattocks v. Bellamy, 8 Vt. 453, that no term less than twenty years, unless aided by extrinsic evidence, was sufficient to raise presumption of payment, in a case not coming within any of the statutes of limitation. That term, in the present case, had not elapsed. It is thus fully shown, that the defendant, Buell, cannot be exonerated, on any statutory or presumptive limitation. 3.

The decree of this court in the year 1818, that this legacy, with others, should be paid to the parents of -the legatees, being minors, is relied upon by defendants as being a sufficient defence to the present bill. That decree provided for the payment to the parents, under certain restrictions, the most essential of which was, that the parents should give security for the faithful and full discharge of their duty, as guardians, by mortgage of real estate, and Ozias Buell was appointed trustee of the children, for the purpose of receiving that security.

Some of the parents of infant legatees gave the required security and received the legacies. Lyman, having the funds in his own hands, neglected, and, indeed, declined to give the security. And in short, this case was not, in any sense, affected by the decree, unless the mere operation of the decree itself was to legalize that which before was illegal. We think, to give the decree of any court such an operation, would be an unheard of extension of the curing process of judicial proceedings.

It is true, that what is done under the sentence, order, or decree of á court of competent jurisdiction, and in the execution thereof, is always legal, and can never be made the foundation of an action, until such sentence, order, or decree shall be reversed, and then only in the case of proceedings, not only erroneous, but irregular. It is admitted too, that this court have the appropriate jurisdiction of the person and estate of infants. The application in the present case was to the proper tribunal, and sufficiently formal. But it is first to be considered, that this decree was only conditional.

In its very terms, it was not to operate upon the property, until the parent had given security in a particular manner. Until that condition was complied with, the decree was as wholly inoperative as if it had never been made. That condition was, from its very nature, a condition precedent. Whenever an authority is conferred upon condition that security is given for the faithful performance of the trust conferred, the giving of such security is always a condition precedent to the vesting of the au£ij0r;ty, Such is the present case.

The fact, that the funds were already in the hands of Lyman, who was the person acting both as executor and guardian, cannot vary the case. If Buell was so situated as to have become liable for the application of the funds to the payment of a legacy, he must see to it that there is a legal application made, and this could only be done by payment to the legally constituted guardian of the legatees, they being infants. A payment to the infants directly, has been held void. Davies v. Austin, 1 Ves. Jr. 247. Lee v. Brown, 4 Vos. Jr, 362. And it is equally clear that payment to the father would be void.

The cases cited by counsel show that, until recently, the English courts would not permit the estate of infants, in the shape of legacies from a stranger, to go for their education, maintenance or support, before the age of majority. But such is not the present doctrine of the English Chancery.

And although a court of Chancery will permit the estate of the infant to be expended for present or future maintenance, or will, in proper cases, allow for part maintenance, this must be done in such a manner, as to secure the full benefit of such legacy or estate to the infant, and a mere payment to the father is not, of itself, sufficient. And it is difficult to perceive how this conditional order of this court varies the case.

If the security had been given, very probably it Would not have been necessary to pay the money again to Lyman, unless the terms of the obligation of surety had reference solely to property of the infant, by him received, subsequently to the date of the obligation. At all events, such security might have been given, as to reach the funds, then in the hands of Lyman. But until such security was given, those funds could not, in any manner, be considered as appropriated by the decree of this court, or by the general operation of law, to the payment of this legacy.

The argument, that because this court had designated Lyman, as a suitable person to receive those funds, after having given proper security, he might therefore lawfully receive them, without any such security being given, or, indeed, that, ipso facto, funds, which he had squandered long before that time, actually came back from their “ lost estate,” and, eo instanti, operated as payment of a legacy, which, until that moment, was “ due and unpaid,” and this by the force of a decree, in its terms, depen-, ding upon a condition precedent, which is confessedly not performed, involves an absurdity almost as gross, as that of permitting one man to appropriate the property of another, upon the ground of his having commenced an action, in which he expects to recover judgment and obtain execution, and thereby perfect his title to the property, which he thus unceremoniously proposes to put to his own use, in advance of his title.

It is also contended, that the accounting before the probate court is so far an adjudication upon the subject matter of this claim, as to preclude a recovery here upon the part of the orators. It is contended,'indeed, on the part of the orators, that this decree of the probate court was not upon any such notice as the statute required. But it was held by this court, in the case of Corliss v. Corliss, 8 Vt. Rep. 373, that in regard to decrees of the probate court, it would be presumed that they were had upon proper notice and formal proceedings, although such previous proceedings did not appear of record.

And in that case it was held that parol proof could not be received to show that no such notice and antecedent proceedings were had. This decree then is to be held as sufficiently formal. It is undoubtedly true, that probate proceedings, and the adjudications of probate courts are in rem and bind all the world. But it is to be considered, that the judgment of no court is conclusive upon any matter, only collaterally in issue before it. The adjudication is only conclusive upon those matters directly passed upon by the court.

It is the constant practice, before those courts, when administrators or executors come to render their account, to credit them the amount of claims, returned by commissioners, as so much money paid by them. This is done without any inquiry whether those claims have been, in fact, paid or not. If assets are found in the administrator’s hands, sufficient for this purpose, he is bound to pay all debts returned by the commissioners as due ; and, being bound, it is not material to the question of accounting, whether the payment has been actually made or not.

His bond is presumed to be sufficient security for that purpose. But no one ever inferred from this matter being passed to the credit of the administrator, in the general account, that, therefore, the creditors of the estate were concluded from pursuing the adminstrator for the recovery of their debts. The adjudication was for another purpose wholly. The object of the accounting is to ascertain the assets in the hands of the executor, and the distrifoution 0f those assets. The creditors have no interest beyond the amount of assets.

If it be conceded that, at all events, such assets are sufficient to pay all the debts, then they have no motive to appear before the court.

If the executor should be allowed by the court for paying debts or legacies, not due, and thus affect the residuum, this would undoubtedly conclude those interested in such residuum, and the executor would be exonerated, after paying the amount decreed to be paid to those entitled ; for this is the object of the accounting, i. e. to find the amount of funds in the hands of the executor ; and this matter is directly in issue, and, being adjudicated, the decree binds all interested in the question.

It is difficult to perceive why the case of a specific legacy should not come under the same rule with a debt due a creditor. If credited to the executor as so much “ money paid,” this, in contemplation of law, only signifies, that it is to be paid before the distribution of the residuum.

For the purpose of ascertaining whether the debt or legacy is to be paid at all, the adjudication may be conclusive, but the-executor must see to it that the money is paid, and he must keep his own vouchers for that fact, and cannot rely upon his decree of quietus, except for what it was intended, as pointing out the manner of disposing of the estate, and it concludes nothing, as to the fact, whether the estate ■has been thus disposed of.

To extend the operation of probate decrees beyond this, and make them conclusive upon every collateral matter, recited, or in any way affected, by the proceedings, would be dangerous, and, indeed, subversive of all known and established principles upon the subject of adjudications, operating in rem, and not in personam. As to the receipts relied upon by the defendants, as a discharge of the shares of the two eldest girls, it will be perceived, that they amount to an admission of payment, when the fact, as found, by this court, was otherwise.

The girls, being more than eighteen years of age, could not by our law be treated as infants. At common law, males and females were upon equal footing, in this respect. But that

section of the bill of rights in the Constitution of this State, which declares involuntary servitude illegal, and not allowable after males arrive at the age of twenty-one, and females at the age of eighteen years, has always been considered as fixing the age of majority of females at eighteen years. And after so long a time of silent acquiescence, on the part of the people, and of virtual judicial construction by all the courts of the State, before whom it has ever become important to determine the question, we should not feel at liberty, now, to treat the question as open to discussion. Such construction of that

section was contemporaneous with the adoption of the constitution, and expressive of the sense of its framers, and, as we think, for very' sufficient reasons. We are not satisfied from the evidence that any fraud was intended, or was, indeed,- practised upon those legatees. The testimony of Mrs. Lyman is laid out of the case, for the reason, that tve think it did tend to charge her husband, by showing those receipts fraudulently obtained, and, if so, they could not avail the defendant Buell, and thus a decree might go against him.

But if the receipt was permitted to operate as a defence for Buell, no decree can pass against the other defendants, although the bill has, as against them, been taken as confessed. For it has long been settled, that if one of two or more joint debtors, made defendants, suffer default, and the others go to trial and a verdict pass in their favor, judgment must be- arrested- as to the defendant defaulted. And- if the testimony of the wife tend, only collaterally, to affect the interest of the husband,- it cannot be used.

These receipts, then, not being under seal,- cannot operate as a technical release, by way of estoppel. They only operate as an admission in writing,- which is not different from an admission made without writing. It is testimony tending to show payment. It is like a promissory note, prima facie, upon good consideration, but not like a bond or other sealed instrument, conclusive. It may be shown, that a promissory note, or any other witten contract, purporting to be upon sufficient consideration, was, in fact, given without any consideration. This is true of the receipts.

A receipt, even for a less sum, expressed to be in full of a debt, is usually prima facie evidence of payment of the debt. But this, like all other evidence, resting in parol, is liable to be contradicted. In this case, it being shown that the receipts were given without any consideration, they can have no effect. by being given, they had operated to put Bue]] off his guard, and thus placed him in a different situation from what he otherwise would have been in, the case might have merited a different consideration. But that is not pretended.

Having disposed of all the different grounds of defence relied UpQn j^T ^ defendants, it would hardly seem necessary to enter into any discussion of the obligation assumed by the joint bond, given by all the executors with surety, for the faithful performance of all duties, including, of course, the payment of the legacies. The statute in force, at the time this bond was executed, did not prescribe the form of the condition of executors’ bonds. The form of the condition of Administrators’ bonds was given.

And executors are required to give bonds to “ return a true and perfect inventory of the estate, and to render an account of his or her proceedings thereon, in the same manner administrators are, by law, obliged to do.” This latter clause, in grammatical construction, would more naturally seem to qualifiy the act of rendering “ an account,” than the giving of bonds.

But it would be a very frivolous construction of this statute, to limit that claim to the rendering of the account, and to hold ihat the rendering of the account had reference only to the statement of the executors’ proceedings, and, whether true or false, no matter. We think there is no doubt the legislature intended that an executor’s bond should be co-extensive, in obligation, with that of an administrator. There would seem to be no good reason why they should not be held to give the same security, that is required of administrators; which, indeed, is now required in terms.

At common law, the authority was considered as conferred by the appointment of the testator. It was treated as a personal, fiduciary trust, and the executor was not holden to give any further security for the performance of the duty, than was implied from his selection. But the sound basis of such a rule is not very obvious to common sense, and in practice, it is believed no such rule ever obtained in Vermont. The forms in use, under the statute in force, at the time this bond was given, show, if nothing more, what was then the practical construction of the statute.

Those forms are all similar to the bond in this case, imposing the same liability in the case of executors and administrators. The idea of requiring a bond for the mere purpose of securing the return of a correct inventory, and the rendering of a formal statement of the account of the executor, without requiring any security for faithful administration, would seem to be preposterous. And the that, when the executors were residuary legatees, they might give bonds “ to pay the debts and specific legacies only,” would seem to favor this construction.

We think, in short, from the terms of the statute, it was intended that executors should, as they did in this case, give bonds for faithful administration, which will include the payment of debts and legacies ; and that this bond, not extending the obligation beyond that, is valid and may "be enforced at law. Hall, Judge, v. Cushing et al. 9 Pick. 395. Being a joint bond it will bind eaoh executor for all the acts of his co-executor. Brazier v. Clark, 5 Pick. 95. 1 Swift’s Digest, 449.

And as the sureties would only be ultimately liable, in cas e of the avoidance of all the principals, and the other executors being confessedly insolvent, or out of the State, the burden would eventually be made to fall upon the estate of Buell.

And, if Buell is ultimately liable for the amount of whatever decree shall pass m this case against Lyman, and Lyman is confessedly insolvent, and Buell is so far directly interested in the subject matter as to be properly joined in the bill, and the subject is properly cognizable in this court, we should not dismiss Buell and pass the decree against Lyman alone, when the amount was eventually to come from the estate ofBuell.

But, having jurisdiction of the case for the purpose ol inquiry and partial relief, we should feel bound to retain it and pass the decree against Buell, even if it were for the devastavit of Lyman, on the ground that the obligation assumed, in giving a joint bond, extended even to the case of the devastavit of a co-executor. Rathbone v. Warren, 10 Johns. R. 587. So that, in either view of the case, we think the orators are entitled to a decree for the amount of the legacy and interest, up to the time of the accounting before the probate court.

The interest up to that time is allowed on the ground that the executors had credited the interest, as having received it. Since that time, and up to the bringing of the bill or demand of the legacy, (and the bringing of the bill is the first demand shown,) the right to claim interest will depend upon the rule of law applicable to the case. After the bringing of the bill, the orators are of course entitled to interest, as for the detention of the money. Trustees of this character, who have the charge of funds of the cestui que trust, are liable for interest in two events.

First, Where they have actually received interest; and, secondly, wiiere they might have realized interest. In the case of a pecuniary legacy, due to a person of full age, it would, doubtless, ^ tpje executor, in a reasonable time — say one year ■ — to pay over the money, after demand, and perhaps, even without demand, or he will be liable for interest.

It seems to be well settled, that in the case of adults, entitled to a pecuniary legacy, especially when the executor is compelled to pay the same out of his own funds, he is not chargeable with interest until after demand, or until he has an opportunity to pay the same, when the legacy is not payable at a specified time. In the case of infants the rule is otherwise, and the executor has generally been held liable for interest.

But when it is recollected that the defendant, in this case, (Buell) is compelled to pay the legacy out of his own funds, for permitting Lyman, indeed, to waste the funds of the testator, and for paying over funds to the residuary legatees, which should have been first appropriated to the payment of the specific legacies, under a n is-take of the law, possibly; and when it is recollected that since the legatees, most of them, came of age, the claim has been permitted to lie by, for almost ten years, we do not think the claim for interest rests upon any very substantial grounds.

It has been held that a legacy, payable to an infant, on his coming of age, is not to draw interest, notwithstanding the executor has had funds for the payment of the legacy. Tyrrel v. Tyrrel, 4 Vesey, Jr. 1.

W e hold in this case, that the executor could not legally pay the legacies, until the legatees came of full age, or guardians were legally appointed, and to still hold the executor, Buell, who is compelled to pay the legacy out of his own funds, liable for interest, while he could not be permitted to pay the money, or while the legatees were lying by, after they came of full age, and when there is no pretence of his having received interest, is inconsistent with the just and reasonable duty of executors. We think the doctrine of the case cited from 3 Mumford, 198, Cavendish v.

Heming, more in accordance with just principles. It was there held that, even in the case of infant legatees, the executor was not to be charged with interest until after guardians- were appointed, and had notice of such appointment.

To hold the contrary doctrine would be to compel him to assume the burden and risk ol having guardians appointed, or leave the money at his own risk, and thus assume the responsibility of faithful guardianship of all the infant legatees, which must greatly enhance the extent of faithful administration, and in a manner, which would hardly be considered as coming within the obligation of the bond. The orators, then, are entitled to the amount credited to the executors in their account, and interest on that sum from the date of the bill. 1 Mumf. 150, Fitzgerald v. Jones.

This disposes of the case, except the questions in relation to the operation of the petition for rehearing and the decease of one of the orators, there being no bill of revivor. In the English chancery, and in New York, it is held that, on petitions for rehearing, the case is open for the party petitioning, only upon the points relied upon as a ground of rehearing, and rehearings there are usually upon some specific point upon the certificate of two counsellors, that there should be a rehearing, and then the entire case is open to the oposite party.

But here, rehearings are only granted by order of two chancellors, and usually upon the merits and the entire merits of the case, and the whole case is considered as open to both parties. And so it will be perceived the present case has been treated. In relation to the decease of one of the orators, it will depend upon the nature of the interest of the legatees. If the interest is joint, and in the nature of a joint tenancy, they'ws accrescendi attaches, and the whole legacy may be recovered by the surviving orators, without the necessity of a bill of revivor. And such we think is the nature of this bequest.

It was not a separate interest in each child in an aliquot portion of the gross sum, which was intended by the testator but a joint interest in the whole. The survivors are enti-tled to recover the whole. Gilbert, Executor, v. Richards, 7 Vt. Rep. 202.