Anderson v. Foster

Fish, J. This case, as the record shows, was treated in the trial below, by all the parties thereto and the judge, as an action against F. O. Foster and E. W. Butler as the executors respectively of the wills of A. G. Foster and Joshua Hill, deceased. It was argued before this court by both sides upon this theory. Whatever, therefore, may have been the true legal character of the petition, this court, under the circumstances, will consider it as against the defendants in their representative capacities. In Laverty v. Woodward, 16 Iowa, 1, it was held that where the descriptive words “ executor of ” etc., were not treated as surplusage by the parties or either of them in the trial court, they would not be so considered in the Supreme Court. In Twitty [566] v. McGill, 31 Minn. 536, the declaration did not clearly disclose whether it was intended to charge the defendant individually or in his representative capacity. In deciding an interlocutory motion the court construed the declaration as being against the defendant in his representative character. The plaintiff proceeded to trial -without electing in which manner to prosecute the action, and offered no amendment. It was held that he-could not afterwards contend that the action was against the defendant personally. See Aultman v. Mason, 83 Ga. 218. As will be seen from the petition, the substance of which is. set forth in the reporter’s statement, the plaintiff, as administrator of Albert W. Foster, sought to recover of the defendants for-assets of the plaintiff’s intestate alleged to have been misapplied and misappropriated by the defendants. As before stated, the action was treated as charging the defendants as executors with the misapplication of such assets. The controlling question, under the demurrers, therefore, is, did the petition state a cause of action against the defendants in their capacities as executors ?’ In other words, were the estates of A. G. Foster and Joshua Hill liable to the plaintiff, if the allegations in his petition were true ?' We think not. While it is true that under section 3200 of the-Civil Code, “ all persons aiding and assisting trustees of any character, with a knowledge of their misconduct, in misapplying assets, are directly accountable to the persons injured,” yet it is a personal liability that the law puts upon the trustee and', those aiding him in such misappropriation of trust funds. The-rule that an executor or administrator is liable individually, and. not in his representative capacity, for injury to third parties by his tortious acts, is well established. 3 Williams, Ex’rs, *1691, 1126, and note 1; Schouler, Ex’rs, §§383-385. If F. C. Foster, as-executor of A. G. Foster, had money in his hands belonging to the estate of plaintiff’s intestate, and wrongfully paid it to E. W. Butler as executor of Hill, and Butler received it with knowledge of F. C. Foster’s misapplication of it, then they were joint tort-feasors, and, without more, liable individually to plaintiff as administrator, but manifestly the estates which they respectively represented would not be chargeable with their-misdoing. [567] Tbe fact that Butler received the money as the executor of 'Iiill, knowing that it belonged to the estate of plaintiff’s intestate, and appropriated it upon an execution in favor of Butler as executor of Iiill, against plaintiff as administrator of Albert W. Foster, would not render the estate of Hill chargeable for Butler’s wrongful receipt of the money. This is not an action against Butler as executor, for money had and received for use of plaintiff as administrator, nor an attempt to make Hill’s estate liable for money belonging to plaintiff’s intestate, of which it has received the benefit, but, as before stated, is an effort to recover of the estates of Hill and A. G. Foster for the alleged misapplication of assets of the estate of plaintiff’s intestate by the defendants. Whether, conceding all the allegations of the petition, the plaintiff could recover of the defendants, or either of them, in any capacity, or in any form of action, we do not decide, for the simple reason that such questions are not in this case. There was no error in sustaining the demurrers to the petition, on the ground that it set out no cause of action against the defendants as executors. Judgment affirmed. All the Justices concurring.