State Ex Rel. Morrow v. Fidelity & Deposit Co.

Briscoe, J., delivered the opinion of the Court. This appeal is from a judgment in favor of the defendant upon a demurrer to the plaintiff’s declaration. The suit was instituted by the plaintiff, as administrator d. b. n. c. t. a. of Benjamin C. Pearce’ late of Cecil County, against the defendant corporation as surviving obligor of John S. Wirt, deceased, to recover the sum of $13,515.72 alleged to have been converted and misappropriated by him, as executor, under the will of Benj. C. Pearce. The facts are fully set forth and stated in the declaration, and for the purposes of the case are admitted by the demurrer to be true. Briefly stated they are as follows: The testator died in 1895, leaving a last will and testament wherein he bequeathed and devised his estate in the following manner. By the first clause of the will, he devised and bequeathed to his wife Ann Jemima Pearce, for and during the term of her natural life, the income, issues and profits of his entire estate, and directed his executor to keep the property safely invested in good and profitable securities, and to pay the income, issues and profits as the same shall accrue to his wife “for and during the .period of her natural life.” By the second item of the will, he gave the principal of the entire estate after the death of his wife to his three children, who are now living. John S. Wirt, his son-in-law, was appointed executor by the will, duly qualified on the 2nd of October, 1895, in the Orphans’ Court of Cecil County, and continued to act as such 1 executor until his death in May, 1904. The appellant, upon the death of Wirt, was appointed by the Orphans’ Court of Cecil County, administrator d. b. n. c. t. a. of Benjamin C. Pearce, and George R. Ash, of Cecil County, was appointed administrator c. t. a. of John S. Wirt. The declaration states that by the administration account *262 passed in the Orphans’ Court of Cecil County, there appears a balance of $13,515.72 in the hands of the executor (Wirt), distributed to him as such executor. By an order of the Orphans’ Court of this county, he was required to safely invest the amount in good and profitable securities and to pay the income, issues and profits to the widow under the will, but that he failed to invest the whole of the balance distributable in his name as such executor but appropriated to his own use, or to other uses than for the benefit of beneficiaries named in the will, all the'funds, moneys, securities and property (except a portion stated therein) which came to his hands as such executor. And there is a further allegation of the declaration, which is admitted by the demurrer, that there are at present no bonds, notes, evidences of debt, or money in the hands of the personal representatives of the executor belonging to the estate, but they were converted and misappropriated by the executor in his life time. Now it is quite clear, we think, upon this state of facts that this suit was improperly brought and cannot be maintained by the appellant. It is well established both at common and by the decisions of this Court that an administrator de bonis non cannot bring an action at law to recover for a devastavit committed by a deceased executor. The authority conferred upon an administrator de bond non by sec. 70 of Art. 93 of the Code, is to administer all things “not already administered,” described by the Act as assets, not converted into money and not distributed and delivered or retained by the executor. And by sec. 72 of Art. 93 of the Code it is provided, the Court shall on application of the administrator de bonis non, order the adminis trator of a deceased administrator to deliver over to him all the bonds, notes, accounts and evidences of debt which the deceased administrator may have taken, received or had as administrator at the time of his death, and also to pay over to him the money in his hands as such. *263 In Stewart and Duffey, Trustees, v. Firemen's Ins. Co., 53 Md. 571, it is said: “To the administrator de bonis non is committed only the administration of the goods, chattels and credits of the deceased, which remain in specie and have not been‘already administered. ’ Our statute limits his authority to the administration of such assets as have not been ‘converted into money and not distributed and delivered or retained by the executor or former administrator, under the direction of the Orphans’ Court.’ In view of this law, and the soilrce from which it was borrowed, money received by the administrator and mingled with his own or other assets sold, wasted or misapplied or converted to his own use are regarded, so far as the rights and power of the administrator de bonis non are concerned, as already administered and hence he acquires no title to such assets, has no authority to bring an action against anyone for their recovery and cannot therefore sue for a devastavit committed by his predecessor in office.'’ This has been the unvarying construction placed by the Courts upon the Acts of Assembly, applicable to this case Hagthorp v. Hook, 1 G. & J. 271; Gardner v. Simmes, 1 Gill, 425; Sibley v. Williams, 3 G. & J. 64; Baker v. Bowie, 74 Md. 467; U. S. v. Walker, 109 U. S. 209. As it appears, then, in this case, from the allegations of the declaration, which are admitted by the demurrer, that this suit was brought to recover for assets converted, misapplied and misappropriated by the appellant’s predecessor, in his lifetime, and which do not now exist in specie, there is no authority given by the statute to the appellant to maintain this action against the appellee. But assuming without deciding that a devastavit was committed, as stated in the declaration in this case, it would be competent for a Court of equity under the facts of this case upon a proper application, at the instance of the beneficiaries under the will, to appoint a trustee, who could maintain an action against the appellee corporation, to recover such portion of the property, which has been lost, wasted, or misapplied, by the appellant’s predecessor in office. *264 (Decided January 19th, 1905.) The condition of the bond, dated the 2nd day of October, 1895, is that John S. Wirt should well and truly perform the office of executor of Benj. C. Pearce according to law, and should in all respects perform the duties of him required by law as executor, without any injury or damage to any person interested in the faithful performance of the office. The declaration states that the property was distributed by the Orphans’ Court of Cecil County to the executor, under the will, as such executor, and was held by him in his name as such executor, and had been directed by an order of the Court to be invested in his name as executor for the benefit of the beneficiaries under the will. The executor would, therefore, be liable for the property and funds that came to his hands as such executor, and if it be shown that the executor was liable to the beneficiaries under the will, it could hardly be disputed that this liability'would also attach to the appellee corporation, the surviving obligor, in a suit by the trustee against the appellee corporation. As there can be no recovery by the appellant against the appellee in this case the judgment of the Circuit Court of Cecil County will be affirmed. Judgment affirmed with costs.