App v. Dreisbach

The opinion of the court was delivered by Huston, L —This was a suit by Henry Dreisbach, a son-in-law of — 300 — Michael App, against Frederic App and Ludwig Kleppinger, executors of said Michael, under the following circumstances: The will of Michael App was proved 5th August, 1809; it contained, among other things, this clause: “I have sold to my son, Frederick App, a piece of land situate in Lehigh township, as per agreement made and executed the 18th November, '1780, for the sum of three hundred pounds. One hundred pounds have been paid to me by my son. The other two hundred pounds shall be settled with him after my decease, on account of his portion. ” Then followed a bequest of fifty pounds to one child, to make it equal to what each of the others had received, and he adds, “It is further my will that all the rest of my property shall be sold and equally divided, as much as possible, among my four children.” There was then given in evidence the article of agreement above referred to,and a bill of exceptions to the admission of it was taken; but why said exception was taken, we were not told: also, the plaintiff gave in evidence the settlement of an administration account by the defendant, as executor, on the 8th of May, 1813. The defendant showed that this account was confirmed by the Orphans’ Court in June following, and the balance in the hands of the executor ordered for distribution. In this account, mention is-made of this sum of two hundred pounds from the son to his father, but that it was not put in the inventory, nor charged to the executor. In November, 1815, Henry Dreisbach gave a receipt in full for the sums awarded by the Orphans’ Court to him- In 1823, this suit was brought, on the ground that the sum of two hundred pounds before mentioned in the will was a debt due from Frederick, for which he ought to have settled in the account of his executorship, and parol evidence was given on both sides, as to what was [the intention of the father, and the understanding between him and his son, as to its being an advancement to the son. The declaration contained two counts. The first stated the will, death of testator, letters testamentary to the executors, and without taking notice of the settlement of their accounts, or of the sum ordered for distribution, charged that there remained in the hands of the executors, seven hundred and nine dollars and sixty-three cents, beyond all debts, funeral expenses and specific legacies, one fourth of which the plaintiff below claimed, &c. The second count charged them, as executors, for money had and received. Several points were embraced in the discussion of this cause, which are not necessarily to be decided at this time. It was contended that on the proof in this case there could be no recovery, because no money was received, or alleged to have been received, by either of the defendants. I incline, however., to the opinion that, in some way, an executor who is indebted to the estate of his testator, can be reached, as having the money in his hands. In Wilson v. Wilson, 3 Binn. 557, a distributive share found on settlement of the account in the Orphans’ Coúrt to he in the hands of the executors, and un — 301 — disposed of by the will, was recovered in assumpsit, though the court was divided. The first section of the act of 1713, establishing our Orphans’ Court, speaks of recovering at common law the sum found, on settlement, to be in the hands of the executors, or administrators. I do not know that any precise form of action has been established. The act of Jipril, 1823, allows transcripts of the settlement of such accounts to be filed in the Common Pleas, and actions of debt, or Scire Facias, to be sued on them. This suit is not for a balance found on a settlement of the amount in the Orphans’ Court, but for a sum decided in the Orphans’ Court not to be due. It is, in effect, an appeal from the decree of the Orphans’ Court, not formally and according to law, but pn attempt to overrule it in another court. This matter has been before us repeatedly, and would seem to be settled to a certain extent, viz. as to the items set out in the account, as settled, and directly acted on by the court. How far an account settled before the act of 1819, or even since that act, may be held conclusive as to matters concealed by the executor, administrator or guardian, at the time of settlement, and equally unknown to the court, and those interested, it is not necessary now to state. Another ground- taken was, that if there could be a recovery against Frederick Jlpp, one of the executors, who was alleged to be debtor to the estate, yet there could be no recovery against Kleppinger, the other executor, who had nothing in his hands, and who had no power to sue his co-executor. The judge told the jury so expressly. Perhaps, however, Kleppinger was himself in fault; he ought to have pleaded separately; and if the plea of plene administravit had been found for him, he was safe. “In an action against executors, though the plaintiff may fail as to one, on the plea oí plene administravit, he may recover against the other. 1 Chitty Pl. 353, 6. 2 Tidd’s Practice, 1023. This was nothing more nor less than a suit for a legacy. Where an act has given a remedy at law where there was none before, as was'perhaps the case here, that remedy ought to be followed. Where that act, or another one says, that remedy alone shall be pursued, it must be followed. The act of the 21st of March, 1772, gives the legatee an action on the case, debt, detinue, or account render, as the case may require. By action on the case, I would understand an action stating the case as in the first count here, with the addition of stating the decree. It has been said, before the law of 1806, that assumpsit did not lie for a legacy: since that act I can have no doubt. The act of assembly gives, in the third section, a power to appoint auditors, on the plea of want of assets, but not to ascertain the amount of a residuary legacy; and I would say that a residuary legatee must compel the executors to a settlement in the Orphans’ Court, and thus ascertain the amount, or must bring account render, in which a statement of all assets will be exhibited; .otherwise, different legatees, entitled to equal parts of the residue, — 302 — may recover very unequal sums, and the executors may be put to intolerable trouble, in proving their whole administration in each suit. The executors pleaded the statute of limitations. The court decided that it did not apply to this case, being a trust, &c. That the statute of limitations does not apply in cases of trust, or cases of fraud, is an assertion to be found in every law-book, and many decisions, not reconcileable with each other, are in the reports of different courts. The labour and the discrimination of the different courts of New York, have saved the profession much trouble on this subject. In Decouche v. Savetior, 3 Johns. Ch. 216, 217, this matter came before Chancellor Kent. He there seemed to adopt the broad principle that, in all eases of direct and express trust, the statute did not apply. The matter was again before him, and was again considered, in 5 Johns. Ch. 522. Coster v. Murray, and lastly, in 7 Johns. Ch. 90. Kane v. Bloodgood. In this last case, he retracts the position taken in the former, and says every deposite is a direct trust; every person who receives money to be paid to another, or to be applied to a particular purpose, is a trustee. The cases of hirer and letter to hire, borrower and lender, pawner and pawnee, principal and agent, are all cases of express trust; yet such cases are not taken out of the operation of the statute of limitations, when sued at law, and ought not to be, and are not, by the better decisions in chancery, and he comes to the conclusion that the trusts not to be affected by the statute in chancery, are those technical and continuing trusts which are not cognizable at.law, but which fall within the peculiar and exclusive jurisdiction of chancery. I shall not go over all the cases which his research has collected, but content myself with citing those which he has cited, as establishing the law on the best and most reasonable foundations in England, and which are adopted by him. Precedents in Chancery 518, Lockey v. Lockey. This was a bill for an account of the profits of an estate received while the plaintiff was an infant, but not brought until more than six years after the plaintiff came of age. The plea of the statute of limitations was allowed, as much as it would be in an action of account at common law; if the infant lies by for six years after he is of age, he is bound at law, and so he shall be in the Court of Chancery. There was no necessity to apply to that court, and no sort of difference in reason ietioeen the two cases. In Prince v. Heylin, 1 Atk. 493, Lord Hardwicke held the statute was a bar in chancery, as well as at law, to any demand from one tenant in common against another, for an account, further back than six years. In Sturt v. Mellish, 2 Atk. 612, Villa Real had been appointed attorney, to demand and receive money from the government of Portugal. A bill was filed against the executor of Villa Beal for an account. The statute of limitations was pleaded, and — 303 — held a bar. “ A trust is such a confidence between the parties, that no action will lie at law, but is merely a case for the consideration of chancery; every bailment might as well be called a trust as this.” In Smith v. Clay, 3 Bro. Ch. 639, (note,) Lord Camben says: “As often as parliament has limited the time of actions and remedies at law, the Courts of Chancery have adopted that rule, and applied it to similar cases in equity.” Chancellor Kent follows the decisions down.to the present time, and adopts, as the result of them, and as the true rule, that, — if a party has a remedy at law, and, instead of bringing his action, lies by, and then resorts to equity, he is bound wherever he would have been at law. This matter came before the Court for the revision of Errors in New York, and the doctrines above stated were fully recognised. Chief Justice Spencer says, (30 Johns. Rep. 585) “It is impossible, in a case like this, where there was ample remedy at law, that the change of the process should produce such a change in the rights of the party.” And again: “I have no hesitation in saying that, in a case where there is a concurrent jurisdiction in the courts of law and of equity, the rule must be the same, and the statute of limitations may be pleaded with the. same effect in the one court as in the other.” In this state we have no Court of Chancery: all our remedies are at law, and sought for by action. Our statute of limitations says, all actions of, &c. &c. shall be brought within the following time and limitation, and not afterwards — and then specifies the time for different forms of action. We have adopted certain rules by analogy, as to forms of action not specified, and we have supposed certain cases of trust to be within the exceptions adopted in courts of chancery, where such courts exist. Courts of chancery, and the proceedings in them, are not mentioned in the statute of limitations in England and New York. Not being within the letter of the' law, they have yet, as I have shown, conformed to the law, in all cases where the remedy might have been at law. All our remedies are at law, and must be at law, in most cases. I do not, however, say we have no cases not within the statute of limitations; practice seems to have settled it otherwise. Our Orphans’ Courts have chancery powers. An executor, or administrator, is a trustee for creditors and for next of kin, or legatees; but when he has filed and settled his account, if there is a balance in his hands, perhaps he ceases to be a trustee, and becomes a debtor for that balance from the time of the settlement. The settlement may be made a judgment, by filing it in the office of the prothonotary of the Common Pleas. Perhaps it must, to preserve its lien, be revived every five years; at all events, it would be considered as satisfied in twenty years, if there should be no proceedings on it. It is not, then, one of those trusts which would last for ever. — 304 — The demand, in this case, is not for a sum appearing due on a settlement in the Orphans’ Court. It is for a sum charged to be due, but denied now, and denied at the settlement; due, if at all, from a man who, though acting in the character of a trustee at one time, put off that character openly, by record, and according to law, ten years before this suit was brought. If he is, or ever was, a trustee for the sum demanded, he is not made so by the will, or the article of agreement, or by any writing; for the opinion of the court was, that, on the written testimony, this sum was an advancement. If a trustee at all, be is made so by parol testimony, and evidence extrinsic the will and the letters testamentary. Against him there was always a remedy by appeal from the decree of the Orphans’ Court, or by action at law. If he is a trustee at all, he is not so in a sense which would take from him the protection of a chancery statute of limitations, where they have a Court of Equity, It therefore must protect him here. Something was said of want of notice to Drieshach of this settlement. In point of fact, he had actual notice, for he received and gave a receipt for the sum due by the decree of the Orphans’ Court, in ISIS; and this suit was brought seven years after; but I do not rely on this. The notice given, agreeably to the rules of the court, and more especially by direction of the acts of assembly, must have the same efiect as actual notice, and bind equally. We have many laws directing notice to be given by advertisement, &c.; so they have in all countries; and we hear too much in court about hardship, for want of actual notice. The notice directed by law must be good and effectual, and we ought not to hear any complaints on that subject. There was no fraud — no concealment — the executor stated explicitly the sum referred to in the will and article, and said he was not chargeable. To call on him, after twenty years from his father’s death, and ten years from his settlement, to enter into a contest to reverse his settlement on parol proof, would be hard, if the law permitted it. Many of those who knew about it must be dead. The court, then, ought to have told the jury, that, whatever may be the case as to matters left out of an administrator’s account, concealed, or kept back, yet, as to this item, inserted, acted on, and the balance received, the account was conclusive; and that, by the settlement of the account in due form of law, and payment of the balance, the executors ceased to be trustees; or, if they are so, are only such by extrinsic proof: that there was a full remedy at law, the same in 1S13 as now; that their case was within the letter and spirit of the statute of limitations: that they were not such creatures of a Court of Equity, as that there was no remedy at law, and that the statute would be a protection against a bill in a Court of Chancery. The principles above stated, as to the statute of limitations in cases of trust, will be found recognised by Judge Washington, — 305 — C. C. Sep. 631, Wisner v. Barnet and others; and was adopted in cases analogous, in Pipher v. Lodge, 4 Serg. & Rawle, 316, and in Brown v. M'Coy, which was this: Brown and IP Coy were tenants in common by agreement, and payment of equal parts of the price. M‘Coy was in possession and died. His children entered, and occupied it as their own; in fact, they never heard of the claim of Brown. I held, that' twenty-one years barred the claim of Brown, and the Supreme Court affirmed the judgment. Judgment reversed, and a venire facias dc novo awarded.