Furst v. Armstrong

Opinion by Mr. Justice Mestrezat, The principal and controlling question in this case arises on the construction of the last clause of the fourth item of Levi Houston’s will which is as follows: “And I give to my said executor full power to conduct for such time as she may see fit the business in which I may be engaged at the time of my death.” It is contended on the part of the appellants that the authority thus invested in the executrix was limited to the “ business ” of carrying on the planing mill and the manufacturing of wood-working machinery, and did not empower the executrix to engage in farming and store keeping and renting the testator’s tenement houses as he had done prior to his death. It is further claimed by the appellants that the executrix could not under the authority conferred upon her by the will subject the general assets of the estate of the testator to liability for the grade debts contracted by her, but that she was limited to the capital invested in the business at the testator’s death. On the other hand, the appellees contend and the court below held that all the assets of the testator’s estate are liable for the debts contracted by the executrix in the conduct of his business under the power contained in the will. At the time of the testator’s death in 1892, he was the owner of various pieces of real estate and was engaged in managing that and in manufacturing and in other business. His indebtedness at that time amounted to about 160,000. By his will he gave his wife, what she would be entitled to under the intestate laws, and the residue of his estate was given in equal proportions to his two daughters. After he had disposed of all his property, he granted to his daughter, his executrix, authority to sell and convey at public or private sale any or all of — 355 — tbe real estate of which he might die seized. He then added the clause of the will above quoted. It is unquestionably true that an executor cannot subject any assets of the estate to liability for trade debts unless the will of the testator confers the authority. His duties as executor do not go to that extent. But it is settled that a testator may by his will empower Iris executor to carry on the business in which he is engaged at the time of his death and when he does so he subjects the assets of his estate to debts contracted for that purpose. Whether liability for the trade debts of an executor extends to the entire estate or is limited to a specific fund depends upon the authority conferred upon the executor by the will. In Toller’s Law of Executors, 166, it is said that articles of copartnership may provide for continuing a partnership, “ or the testator may by his will direct his executors to carry on his trade after his death, either with his general assets, or appoint a specific fund to be severed from the general mass of his property for that purpose.” And in Williams on Executors, *1688, the author says that “the testator may, by his will, qualify the power of his executor to carry on trade, and limit it to a specific part of the assets, which he may sever from the general mass of his property for that purpose.” In Laughlin v. Lorenz’s Administrator, 48 Pa. 275, it is held that the personal representatives of a deceased partner may carry on the business for, and bind his estate, where a covenant to that effect exists in the articles of copartnership or he directs by will that it should be done. The above quotation from Toller’s Law on Executors is cited as sustaining this principle, and the authorities cited there and here to support the opposite view are said by Judge Agnew, delivering the opinion of the court, to admit the proposition that the general assets of an estate may be liable for debts incurred in the continuance of the partnership. Lorenz’s estate was held liable for the debts contracted by the surviving partner, the court using the following language: “ In the present case neither the covenant nor the will of Lorenz limited the fund to be made liable by the continuation of the partnership business after his decease, and we discover nothing therefore to restrain the general liability of his estate.” In the case in hand, the executrix accepted the trust com — 356 — mitted to lier by the testator and exercised the power conferred upon her by the will. She took charge of and conducted all the business in which her father was engaged at tbe time of his death. She paid the indebtedness of $60,000 incurred by the testator during his management of his affairs and for which all the assets of his estate were liable. In accomplishing this work, she contracted certain debts which the appellants, who are beneficiaries under the will, claim should not be 'paid out of the general assets of the estate. This is not a contest between partnership and individual creditors nor does it raise any question arising out of the partnership relation. The rights of the creditors with whom the testator contracted debts are not involved in this controversy. Those debts have been paid. The language used by Levi Houston in his will which confers upon the executrix authority to conduct his affairs is broad and comprehensive. She is given “ full power ” to carry on his business. Everything necessary for the purpose therefore she may command and use. This is necessarily implied. In no other way could she accomplish the object of the trust. The testator was dead and no other person had authority to interfere with his business. If, therefore, it was to be continued as he had conducted it and as his will directed, it was absolutely necessary that the power of the executrix should be ample and unlimited. At the time of his death, his business interests were many and large. He was engaged in manufacturing and in the mercantile business as well as in renting numerous tenement houses and in farming. His executrix assumed charge of all these interests and carried on the various branches of the business as her testator had done. If the contention of the appellants be sustained, she was required to do this with the capital invested in the business. But her power is not thus qualified by the will, nor is she limited to any part of the assets of the estate in executing the trust imposed by the terms of the will. The testator conferred the power to carry on the business and that implied, in the absence of anything in the will to the contrary, the right to appropriate sufficient assets of the estate to accomplish the object. As said in the authorities cited above, he might have limited her power to a specific part of the assets of his estate, — 357 — and had he done so she would have been compelled to observe the restrictions placed upon her in the will. In the absence of anything in the will, however, manifesting an intention on the part of the testator to limit the source of revenue to be employed in the business, the executrix may, under the power granted her, use the general assets of the estate. The power of the testator to authorize his executor to continue his business after his death and the designation of the funds of his estate to be devoted to tbat purpose were alike entirely and solely under his control and subject alone to bis testamentary direction. In language that is explicit and amply sufficient lie has conferred authority upon bis executrix to carry on his business after bis death without exercising his conceded right to limit the fund to he devoted to that purpose. We cannot presume that the testator intended to impose any restriction upon her right to use the assets of his estate in the discharge of her duties as trustee. The evident purpose of the testator in the last clause of the fourth item of his will was to put his executrix in his place with like authority as himself in the management and control of the estate. While he did not fix any time in which she should conduct the business, it may have been his intention that she should retain control until she paid the indebtedness against it and then carry out tlie sóbeme of distribution directed in the will. Again, he may have thought that his personal, representative should have discretionary power to continue his business so as to avoid loss by being compelled to close it out within the time required for the settlement of decedent’s estates. With a view to realizing the full value of bis investments, considering the character of bis property and tbe large indebtedness, it doubtless occurred to him that his executrix should have ample powers in the administration of his estate. But whatever may have been his undisclosed intention or purpose, the will placed in the hands of his executrix the estate to be managed and controlled by her with the authority in doing so to incur the necessary obligations. The widow’s interest in the decedent’s estate was acquired by virtue of the will and not under the intestate laws. The decedent did not die intestate. The widow was at liberty to reject the provision made for her by the testator and this would — 358 — have created an intestacy as to her. She, however, did not elect to take against the will, but on the contrary accepted the .profits accruing to her from the management of the estate by the trustee. The will defines her interest and she will receive it on the settlement of the estate, the assets of which are liable for the debts contracted by the trustee. The learned counsel for the appellants has discussed the right or authority of the executrix to delegate to another her power to conduct the business. The question, however, is not raised by any assignment of error and need not be determined. The appellants complain that the trustee has been unfaithful to her trust and has squandered the estate. If this be true, the beneficiaries under the will had an adequate remedy and should have invoked it. Since the testator’s death in 1892 they have permitted the trustee to manage the affairs of the estate as directed in the will without heretofore alleging, so far as the record discloses, any improper or negligent conduct or any disregard of duty by her. This proceeding does not raise the question and hence it need not be considered. The plaintiffs’ bill prayed for a decree that partition of the real estate of the testator be made between his daughters and his widow. The answer denied the right of partition until payment of the debts incurred by the executor in the conduct of the testator’s business as directed by his will. Complainants contended that the real estate was not liable for the trade debts of the executrix. The court, however, held that the general assets, including the real estate, were liable for the obligations thus contracted, but granted the prayer of the appellants and awarded partition. The appellees were satisfied with this order. Subsequently the appellants, notwithstanding partition was awarded as they had asked, moved the court to dismiss the bill. This action was taken by the appellants for the purpose of having this court construe the will of the testator and determine whether the general assets of his estate are liable for the trade debts of the executrix and whether the widow takes under the will or under the intestate law. The court below made a pro forma order dismissing the bill and refusing partition. This order having been made on motion of the appellants for the purpose stated, we will not now reverse the trial judge, although his decree might be erroneous. However, the questions raised — 359 — by this appeal having been disposed of, we will give the appellants, if they desire it, an opportunity to have determined under the will their right to partition by permitting them, notwithstanding the affirmance of the decree, to apply to the court below to vacate the decree dismissing the bill. The assignments are dismissed and the decree of the court is affirmed at the costs of the appellants.