Fraley v. Thomas

Simmons, Chief Justice. An execution in favor of William Eraley against George W. Watkins, for $10,000, came into the hands of the plaintiff’s executor. The execution was issued in 1876, and we infer from the record that it came into the executor’s hands soon after that time. It does not appear when the testator •died or the executor qualified. When the execution came into the hands of the executor, Watkins was solvent, and -owned realty worth about $10,000 and personalty worth from $8,000 to $11,000. He had a good credit and his credit continued good until 1882 or 1883. After that lime it was not so good. About 1890 he became diseased physically and mentally, and his credit became very much weakened. In 1891 the executor placed the execution in [376] the hands of the sheriff and had it levied, but was met by an affidavit of illegality setting np that the judgment from which the execution had been issued was dormant. Subsequently a compromise was agreed on between Fraley’s executor and the representative of Watkins’s estate, and all the legatees under the will of Fraley agreed to the compromise except Mrs. Thomas, the defendant in error in this case; and upon the application of the executor, the ordinary approved the compromise. The executor carried out the compromise, receiving in full discharge of the execution certain land, from the sale of which he realized about forty-five hundred dollars. Mrs. Thomas received her proportion of this fund, and gave a receipt therefor, reciting that it was “on interest in estate of said William Fraley under the will of said deceased.” Afterwards the executor was cited by Mrs. Thomas for an accounting before the ordinary; and the case was taken by appeal to the superior court. There was a verdict for tire plaintiff, but the amount of the verdict does not appear*. The defendant made a motion for a new trial, which was overruled, and he execepted. 1. It was insisted on the part of the executor, that having obtained the consent of the ordinary to the compromise, and having executed the compromise in good faith, he was relieved from any further responsibility to Mrs. Thomas or any other person interested in the estate. The code (§2535) requires an administrator or executor to place in suit every debt due the estate which he may reasonably expect to recover, and declares that “if by his neglect or indulgence the debt is barred by the lapse of time, or is otherwise lost to the estate, he is responsible therefor.” It appears in the present case, from the evidence of the executor himself, that he indulged the debtor when the latter had ample means to pay the debt, and that he continued to indulge him for more than ten years, though he knew for a considerable portion of that time that the debtor was gradually growing “weaker.” It will be seen, therefore, that the failure to [377] collect tbe debt in. full was due to tbe executor’s own negligence. Tbis being so, be was liable for so mucb of tbe debt as was lost to the estate; and it could malee no difference that tbe compromise finally effected was approved by. tbe ordinary. Tbe effect of the ordinary’s approval was merely to show tbat tbe compromise was necessary or proper under tbe circumstances- then existing. It could not relieve tbe executor from liability for the- negligence which rendered tbe compromise necessary. 2. It was also contended by tbe executor, tbat tbe receipt by Mrs. Tbomas of tbe fruits of tbe compromise estopped her from claiming tbat there was any further liability o-n bis part on account of tbe debt in question. If, as we have shown, tbe compromise did not protect tbe executor from liability for bis negligence prior to tbe compromise, it follows tbat acceptance of tbe fruits of tbe compromise did not operate to discharge him from such liability; and there was nothing in tbe terms of tbe receipt given by Mrs. Tbomas which indicated tbat it was intended to operate as a discharge in full. 3. Tbe evidence warranted tbe verdict, and none of tbe grounds of tbe motion for a new trial present any valid reason for setting tbe verdict aside. Judgment affirmed.