Mason v. Roosevelt

The Chancellor. A rehearing has been granted on the application of the defendants, who are executors of C. C. Roosevelt, deceased, against so much of the decretal order of the 7th of Marchi 1320, as overruled the 2d and 3d exceptions taken by these defendants to the master’s report. The 2d exception was, that the master had not credited the estate of C. C. R. with commissions on the moneys expended by him, on account of the estate of Jiicoll, or with any other allowance for his agency and services in relation to that estate. I am entirely satisfied, that under the circumstances of the case,' there is no real equity in this claim for commissions. C. C. R. admits, in his answer, that he assumed the agency of the estate of Doctor Nicoll, at the request of the administratrix, and from motives of humanity and benevolence, as he had been a friend to the intestate, and was connected by marriage with the family. It was a very loose and undefined agency, and Mrs. Ludlow, the administratrix, states, in her testimony, th^it she intended to confide to his discretion the management of the estate, to the éxtent of her‘power. He dealt with the funds of the estate very much at his own discretion, and though with honest intentions, yet evidently with a regard to his own convenience. It would be giving too much encouragement [541] to a lax and officious interference, to allow a commission in this case to the agent of the administratrix, who ought either not to have assumed the trust, or to have executed it herself. The 3d exception was, that the master had charged the estate of C. C. Roosevelt with interest on such items of the petitioner’s charge as were allowed by the master, and had credited the estate with interest on such items of the defendant’s discharge, as were allowed by the master, in those instances where C. C. R. had no funds in hand belonging to the estate, at the time of the payments mentioned in the items of the defendant’s discharge, so allowed. So lar as C. C. R. acted as the authorized agent of the administratrix, I admit he ought not to be charged with interest on moneys belonging to the estate, provided he acted with good faith, and according to the directions of his.principal. But in respect to the receipt of rents of the real estate of Nicoll, he could not have acted as agent of the administratrix, for she had no power over these subjects. He acted in respect to the real estate as assumed trustee, for the infant heirs of Nicoll, except so far as the proceeds of the real estate arose from sales by the administratrix, under an order of the Court of Probates. I am induced to think, that interest was too extensively allowed under the decretal order, now under review, and it was allowed from the consideration, that C. C. R, did not keep the moneys of the estate distinct from his own, and suffered balances to accumulate on hand, from year to year, while interest was growing or accumulating ón debts due from the estate. I ought to have given more weight to the consideration, that C. 'C. R. was acting, in general, as the agent of the administratrix. He avers, in the answer, that he acted in this character, and Mrs. Ludlov; herself confirms it by her testimony. He was in fact her banker, except so far as he meddled with the rents or pro [542] ceeds of the real estate, ia cases where she had no authority to act herself, or to confer power upon him. It does not appear, that he ever refused to obey her directions, or refused to account; and under all the circumstances, I shall modify the former decree, touching this question of interest, and confine it strictly to those items in the account, which cannot rest upon his agency under the administratrix, but must be referred to his character as assumed guardian, (and so he declared himself to be,) for the heirs of Nicoll. In the character of trustee for the infants, he must be held strictly to the obligations of his'trust, which he assumed, without the sanction of a regular authority, and without giving the requisite security, that is demanded in such cases. The exceptions, which were taken on the part of the heirs of Nicoll, and overruled, were opened for review in consequence of the rehearing granted to the opposite party. But on a re-examinaiion of them, I see no reason to alter the former decree. The charges, that are sought to be allowed, and which were disallowed by the master, rest on the testimony of Mrs. Ludlow, and that is not sufficient against the answer of C, O. R., which, though inaccurate in several respects, is not sought to be impeached as intentionally wrong. She referred to a paper or memorandum not produced, and to her account rendered to the surrogate, in which some of these items in question are stated to have been, paid. The answer of C. C. R. had schedules annexed to it, which were declared to contain a true account of the moneys received and expended; and it is to be here observed, that C. C. R. lived 18 months after his answer was put in, and that answer was not put in issue in his life time. The answer seems to have been a direct and pertinent answer to the interrogatories in the bill, for he was called upon to state, “ what part of the personal estate of Doc [543] tor S. N. had come to his hands, and what part had been sold or assigned, and that he should set forth a detailed account of the personal estate, and the moneys arising therefrom, and discover and produce the accounts of his transactions.” On this subject, the testimony of Mrs. L., in opposition to the answer, would have been interested and inadmissible, if she had not been discharged by the heirs of Nicoll, on the 10th of November, 1810, from the charge of “ all moneys, goods and accounts, received by her as administratrix.” Though this was not a technical release from the want of a seal, it was a complete settlement with her, and acquittance of her as administratrix 5 and it becomes a serious question, whether these heirs can, by means of her testimony, throw the responsibility which belonged to her as principal, exclusively upon her agent. The administratrix was the person immediately and properly responsible to the heirs, and she was equally responsible to them for the agency of C. C. R., whom she employed. It was in her power, at any time, to have settled with her agent, audio have discharged him, and if it was done bona fide, and not collusively, the settlement would have been a protection to the agent against the heirs. (See the cases cited, and commented upon, in 3 Johns. Ch. Rep. 479, 480.) A voluntary discharge of the principal would seem to be a discharge of the agent also. There was no mistake in the case. The heirs, it is evident, were duly and fully apprized of the great extent of this agency, add there is something very forbidding in the attempt to charge the estate of the agent with additional items, in opposition to the answer, and on the single testimony of the administratrix, who has been released. I shall, therefore, confirm the former decree, so far as it disallowed the 2d exception taken on the part of the executors of C. C. R., and so far as it disallowed all the ex* [544] ceptions taken on the part of the heirs of Nicoll; and I shall modify the decree as to the third exception on the part of the executors, by exempting the estate of C. C. R._ from the payment of interest on monies belonging to the estate of Nicoll, and which were received under the authority of the administratrix. But I shall still direct the estate to be charged with interest on all monies received by C. C. R., as rents and proceeds of the real estate of Nicoll, except the proceeds of sales of the real estate, made in the name, and by the authority, of the administratrix, under the orders of the Court of Probates. Order accordingly.