McKoy v. Guirkin & Co.

Smith, C. J. (after stating the case). It is plain, if the plaintiff in his representative capacity is entitled to the possession of the fund, his remedy is against the personal representative of the deceased trustee, for whom, under the contract of deposit with the defendants, Guirkin & Co., as agents, they hold, and not against the agents themselves, the latter’s possession being, in legal effect, that of their principal, to whose right such personal representative succeeds. Affirming the ruling against the plaintiff, the action properly terminated, and it-was error, with the parties then before the Court, to proceed to make a final disposition of the fund. But can the plaintiff recover the fund for the testator’s estate from the personal representative of the deceased trustee? This question must, in our opinion, be answered in the negative. It has been settled by repeated adjudications in this Court, supported by sound reasoning, that when an executor assents to a legacy given for life with remainder over, the assent extends also to such remainder, and his control over it ceases, and having nothing further to do he becomes so far functus officio, and the successive legatees must adjust their respective claims among themselves. James v. Masters, 3 Murph., 110; Ingrams v. Terry, 2 Hawks, 122; Alston v. Foster, 1 Dev. Eq., 337; Smith v. Barham, 2 Dev. Eq., 420; Burnett v. Roberts, 4 Dev., 81; Saunders v. Gatlin, 1 D. & B. Eq., 86; Conner v. Satchwell, 4 D. & B., 72; Lewis v. Smith, ibid., 326. If, however, the specific thing bequeathed for life, with a remainder, which in terms requires the restoration of the property to the executor to enable him to execute the trusts attached to the ulterior disposition, the executor may sue and recover, the assent in such case being limited to the *24 vesting of the life estate only. Dinwiddie v. Carrington, 2 Car. Law Rep., 469 (Bat. Edition), 355. Thus, where the bequest was of slaves and other personal property tó the wife for life, to' be sold after her death and the proceeds divided among the testator’s children, the executor may sue and recover them, and if they have been converted by the life tenant to her use, may recover the value thereof. Allen v. Watson, 1 Murph., 189. This is necessary to the full execution of the trusts assumed by the executor, and the assent inures only to the possession and use of the property for the tenant’s life. James v. Masters, 3 Murph., 110. The facts of the present case bring it under the present rule, which leaves the fund at the absolute disposal of the trustee for the poor of the county, and no trusts abide upon the executor after the payment over of the money, for the discharge of which he can demand its restitution. Where the cause is properly constituted in Court, and the parties claiming the fund are present in the action, so that a determination of the controversy will bind all, it may be decided whether the bequest for the benefit of the poor is valid, or must return to legatees under the will or to the testator’s next of kin, and it would be premature in us to anticipate its solution. The action must be dismissed, and it is so adjudged. Dismissed.