Arline v. Miller

By the Court. McDonald, J. delivering the opinion. Sarah Miller filed her bill against Jethro Arline, as executor of the will of Enoch Tootle, deceased, requiring the sale of a negro man named Abram, and one hundred and ninety acres of land, alleged to have been assigned as dower to the widow of William Tootle, deceased, on whose estate the said Enoch Tootle had administered, and for other relief. Gracy Taylor, the mother of William Tootle, had a life estate in Abram, and he and his two sisters were entitled to the remainder. William Tootle purchased the interest of his sisters in the remainder, and the life estate of his mother in Abram. He agreed to pay for the interest of the latter, sixty dollars per annum, during her life. These things took place about the year eighteen hundred and six. William Tootle died in eighteen hundred and fourteen. Gracy Taylor died in eighteen hundred and twenty-nine. Fereby Tootle, the widow of William Tootle, died in eighteen hundred and twenty-six. Enoch Tootle and Thomas Glenn administered — 338 — on the estate of William Tootle, deceased. Abram was appraised as belonging to the estate of William Tootle, subject to the life estate of Gracy Tootle; Enoch Tootle as administrator, took possession of Abram after the death of William Tootle, and appropriated his hire to his own use, without ever setting up title to him, until 1848. He died in 1849. Complainant did not know until two years after Enoch Tootle’s death, that he set up any claim or title to Abram, while he was in life. The dower land was not sold by the administrators after the death of Fereby Tootle, the widow, but Enoch Tootle took possession thereof, and appropriated the rents and proceeds thereof to his own use, to the time of his death. He claimed the land in no other right than as administrator of William Tootle, until he devised it in his will. His will was probated in 1849. Jethro Arline, as executor, proved the will of Enoch Tootle, took possession of Abram and his hire, and the land assigned as dower and owned by William Tootle at the time of his death, together with the rents. Thomas Glenn is dead, having left the land and negro, the rents and hire in the hands of Enoch Tootle. When William Tootle died, he left a wife, three children, Enoch,Hannah and Penelope, and complainant, the daughter of his deceased daughter Winefred, as his heirs at law. There were no creditors; each of the heirs at law of Wiliam Tootle, it is alleged is entitled to five thousand dollars, or other large sum from the rents and hire, and the land and negro should be turned over to them as the heirs at law of William Tootle, deceased. Complainant was an infant at the death of her grand father, and so continued until she married, and she remained under coverture until June 1849, when her husband departed this life, without having reduced the property to possession; other heirs at law declined to become parties to this bill. The counsel for the defendant moved in the Court below, to dismiss complainant’s bill, on the ground, that there is no privity between the executor of Enoch Tootle and the admin — 339 — istrator of William Tootle, deceased, and for the want of Equity and proper parties. The Court refused the motion, and defendant’s counsel excepted. [1.] The defendant is executor of the last will of Enoch Tootle, deceased. Enoch Tootle, when in life and down to the time of his death, was administrator on the estate of William Tootle, deceased. The complainant is one of the heirs at law of William Tootle deceased. According to the allegations of the bill, Enoch Tootle had never accounted for the hire of Abram, nor for the rent of the land which had been assigned for dower to William Tootle’s widow, which he is charged to have taken possession of, after bA death. He is charged to have appropriated the hire and rents to his own use. The executor of an administrator who wastes or converts goods, chattels, estates or assets of any person deceased to his own use, is liable and chargeable in the same manner as the testator would have been, if he had been living. Cobb’s new Dig. 309-10. Under the charges of this bill, the testator Enoch Tootle would have been liable to the complainant, not only for the hire and rents, but for the property, for he is charged to have converted the whole of the property to his own use. [2.] But for the statute above referred to, and the Act of 1799, Cobb’s new Dig. 288, the complainant would have been but a simple contract creditor of Enoch Tootle, who had, as administrator of William Tootle, committed a devastavit. Charlton vs. Low, Peere Wms. 330. These statutes enable the complainant to call the executor to account in the same manner that she might have proceeded against his testator, and secure to her a preference over other creditors. The former of these acts gives the remedy against the executors and administrators of a deceased administrator, as well as against the executors and administrators of an executor, de son tort. [3.] There are sufficient parties to the bill. The complain — 340 — ant sets forth fully her title to an account, how it arose, that she is entitled as an heir at law of her deceased grand-father; her mother, who was his daughter, and if living at his death^ would have been one of the heirs at law, having been dead at that time — she sets forth the number of heirs at law amongst whom the estate was distributable, (but if she mistakes in this, and it appears in the proceedings, it is sufficient;) that her husband is dead, that he never reduced the part of the estate sued for to possession, and that she is now entitled to an account for it. It is a right that survived to the wife. Calvert on Equity, 271. There is, unquestionably, equity in the bill. The executor of Enoch Tootle is liable and chargeable in the same manner that he would have been if he had been living, and this is an ordinary bill for an account. [4.] The record does not show that there was any objection to the sayings of Enoch Tootle as evidence, urged at the hearing of the cause. [5.] The executor of Enoch Tootle cannot be charged as a representative of William Tootle, deceased. He is proceeded against as the representative of Enoch Tootle, who was liable and chargeable as the administrator of William Tootle, as well as for the distribution of the undistributed part of William Tootle’s estate. For the latter purpose, the bill could not be sustained; but the bill makes a case of mal-administration on the part of Enoch Tootle, and a conversion to his own use of both the hire of the negro and the rent of the land, and also of the negro and the land, for which a decree might be made against him under the prayer for general relief. The decree would be de bonis propriis. [6.] The objection to the charge, which the Court gave the jury on the statute of limitations, is that one disability cannot be tacked to another to prevent the bar of the statute, and that the coverture of the complainant during her infancy cannot be tacked to the infancy to prevent the bar. The statute of limitations does not usually run against a trust. Pre — 341 — sumption of payment sometimes arises from length of time. But that presumption is often repelled by the circumstances of the case, in which it is attempted to raise it. Are the circumstances of this case so strong against it as to counteract its force? The testator administered in 1814, and continued administrator of William Tootle’s estate until he died in 1849. It is not insisted that he was ever dismissed from the administration; the right of complainant to have an account for either the negro or his'hire, the dower land or its rent, did not accrue until the death of Gracy Taylor and Fereby Tootle, both of whom died after she had attained the age of twenty-one years, and during her coverture; one of the witnesses testified that on the death of William Tootle, Abram was not carried into the division of his estate. By another • witness, it was proven that within a very short time prior to Enoch Tootle’s death, he proposed to buy of Miller his interest in the dower land. From these circumstances, it is clear that the presumption of payment could not arise in the case, and that there was no statute bar to complainant’s right, whether she was a minor and married when she was a minor, or not. [7.] The receipt given by complainant’s deceased father to the administrators, is not exhibited in the record. We do not know its precise terms, but from the copied evidence in the case, we infer that it did not embrace the subject matter contested in this suit, for it was given long anterior to the accrual of the right to demand either Abram or the land assigned for the dower of Mrs. Tootle or the hire or rent. The charge of the Court in reference to the receipt, is that that statement in the answer is not evidence without proof — that it is not responsive to the bill. The defendant’s answer states, that he found the receipt amongst the papers of his testator, that he believes it to be the genuine signature and receipt of Underwood, the father of the complainant, but he does not say that he knew the hand-writing of Underwood. He then claims that the receipt came from the proper custody and — 342 — from its antiquity proves itself. This is the answer in regard to the receipt. There is no allegation in the bill respecting the receipt to which the answer in regard to it can be responsive. Gresley’s Eq. Evidence 304, 430. The answer of a defendant to charges in the bill, must be direct and positive, and not from information, hearsay and belief, to entitle it to a claim to be responsive to the bill and make it evidence, except perhaps, where the facts answered by a defendant against his interest, are from information, and he states, additionally, that he believes them to be true. This defendant knows nothing of a payment except from the receipt, and a receipt too, for ought that appears in the record, of a person, to whom the executors had no authority to pay. The defendant answers to the payment as an inference from the receipt, and withholds the receipt that he acknowledges to be in his possession, and claims that his answer to a matter of which he knows nothing, shall be regarded as responsive to complainant’s allegations, and defeat her right of recovery. We think there was no error in the charge of the Court on that point. [8.] The testator treated the property as his own by disposing of it by his will, and claimed it, in hostility to the true owners, as whose trustee he held it, and that was a conversion of it. The complainant could follow it into the hands of his executor and claim an account of it. Without going into a minute examination of the evidence, we will barely say that there was evidence sufficient to sustain the finding of the jury, and the law fully supports it. Judgment affirmed.