Brooks v. Rice

Endicott, J. We are of opinion that this action can be maintained. Under the will of John Richardson, who died in 1837, Nathaniel Bemis, Jr., for whose benefit this action is brought, became in 1844 entitled to receive during his life an annuity of $300. John H. Richardson, son of the testator, was made executor and residuary legatee, and gave bond in the usual form, with sureties, to faithfully discharge his trust and to pay all debts and legacies. All the estate of his father, both real and personal, thus passed to him, and he was bound to pay debts and legacies, [411] and to perform all the trusts and duties imposed on him by the will. Clarke v. Tufts, 5 Pick. 337. From 1844, and until his death in 1850, he paid this annuity to Bemis. He left a will, in which George W. Richardson and Addison Gilmore were appointed executors, and they gave separate bonds as executors with sureties. The executors, by virtue of the authority given in his will, sold a large amount of the real estate, and took from the grantees mortgages of the same to themselves as executors. Gilmore died a long time ago, and these mortgages appear to have been held by the surviving executor; for the report states that since the “ year 1851 the said George W. Richardson has sold and assigned said mortgages, the last assignment being in the year 1874.” It is fairly to be inferred from the report that these mortgages constituted a trust fund, from the income of which the annuity was or should have been paid. The annuity was regularly paid till May 1878. George W. Richardson was adjudged a bankrupt in 1878, and is now residing beyond the limits of the United States. George T. Rice, one of the sureties on his bond as executor, died in 1867, leaving a will, and his estate was fully settled before the plaintiff’s right of action accrued; and this action is brought against the defendants, who received a large amount of property under his will. Gen. Sts. c. 101, §§ 31, 32. John H. Richardson, having given bond to pay debts and legacies under the will of John Richardson, and having received all the property as residuary legatee, became bound to pay the annuity to Bemis, which duty he performed during his lifetime. It was competent for him to create a trust in his own will, from the income of which this annuity should be paid after his death, and to designate in what manner the trust fund should be created or set apart. He could properly appoint his executors to administer such a trust. And we can see no reason why Bemis could not properly avail himself of such a trust, and receive the annuity under it. Dorr v. Wainwright, 13 Pick. 328. In Watts v. Howard, 7 Met. 478, 482, it was said by Chief Justice Shaw, “ It has been repeatedly held, that in such case the character of executor includes the duties of trustee, and that his proceedings in both capacities come within the scope of his [412] executorship, and are embraced in the bond given by him as executor.” The executors created a trust fund, which was invested in the mortgages above referred to, which fund, or portions of the same, remained in the hands of the surviving executor till 1874, during which time and until May 1878 the annuity was regularly paid to Bemis. And it is to be presumed that this trust was established and executed with the knowledge and assent of the parties in interest. Nor does it appear that there was any breach of the executor’s bond, to the knowledge of Bemis, so far as the payment of this annuity was concerned, until George W. Richardson failed to pay it in 1878. Prescott v. Pitts, 9 Mass. 376. There was no breach of the bond, therefore, in the lifetime of George T. Rice, on the ground that the executors failed to create a trust fund, as contended by the defendants. And the report expressly finds that the estate of Rice was fully settled before the plaintiff’s right of action accrued. The defendants also contend that, as “the executor of an executor shall not, as such, administer the estate of the first testator,” (Gen. Sts. c. 93, § 9,) George W. Richardson could not, as executor of John H. Richardson, carry out any of the provisions of the will of John Richardson. But, as the case is presented, George W. Richardson simply executed the trust created by the will of John H. Richardson. We are not of opinion that the only remedy of Bemis is against the estate of John Richardson, as the defendants contend. Judgment must therefore be entered for the penal sum of the bond. Judgment accordingly.