Haskell v. Hill

Morton, J. The first question relates to the construction of the written assent given by the executors to the assignment. Taken literally, the assent would seem to be of no effect. It signifies the agreement of the executors to the assignment, and yet reserves all their rights and remedies against any person liable as maker, indorser, guarantor, or otherwise, on the notes which they hold. These things would appear to be inconsistent with each other. That the executors intended their assent to be effectual, however, would seem to be evident from the fact that they assented at all. They were not required to assent unless they intended to agree to the assignment. Nothing appears from the assignment itself, or from the facts in the case, to show that it was improper for them to assent to it, or that they had no right to assent. And we think that the more natural construction of the writing is that the executors intended to release Hill, but meant to reserve their rights against Crown, [128] who was liable as a member of the firm of S. Prentiss Hill and Company on the larger note, and to any security which they had, and that for that purpose they adopted in a slightly modified form, and not with entire accuracy, language found in the assignment. The assent being sufficient, the remaining question is what amount, if any, the executors are entitled to prove against the estate in the hands of the assignees. The assignment provides in substance, amongst other things, that, if any creditor holds security, which under the insolvency laws of this Commonwealth would be applicable to his claim, he shall be entitled to a dividend on only so much as may remain after deducting from it the proceeds received from a sale of the security. By the will of S. Prentiss Hill, the father of the defendant Hill, the latter became entitled on its final distribution to one third of the estate disposed of by the will. The agreed facts find that the estate was inventoried at upwards of $20,000. It safely may be assumed, therefore, that the interest of the defendant Hill in the estate was worth several thousand dollars. By the will the executors were authorized “ to loan ” to the defendant Hill “ not exceeding four thousand dollars, . . . such sum so loaned to said John P. Hill, with interest thereon not paid upon the final distribution of my estate, to be deducted from his share thereof.” The sums represented by the notes which the executors hold against the defendant Hill were a part of the estate, and were lent to him by the executors with the knowledge and consent of all parties interested in the estate, and presumably with the understanding on the part of the defendant Hill that the will gave the executors the right to deduct the sums thus lent from his share of the estate on its final distribution, and that they were to exercise this right. We think that the lien which the executors thus acquired on his interest in the estate of S. Prentiss Hill is security- on the estate of the debtor, within the meaning of the insolvency laws of this Commonwealth. It is, in effect, a right on their part to set off against his share, on the final distribution of the estate, the amount due from him to it on account of money lent by them to him, and though he could not set off against the notes the share which ultimately might be coming to him if suit were brought against him on them before [129] the estate was ready for distribution, we think that that fact cannot prevent the lien which the executors have on his share of the estate from being regarded as security for the payment of the notes. The value of his interest can be determined by a sale of it, or in such manner as the parties agree, or otherwise if they are unable to agree. The will was probated in 1888. The same persons are named in it as executors and trustees. So far as appears, the executors have not rendered their final account, nor been appointed trustees by the Probate Court. By the will the trustees are authorized to continue the loans. Whether the executors act as such in regard to matters pertaining to the loans, or as trustees, would seem to be immaterial. In default of any appointment of trustees by the Probate Court it devolves upon the executors to carry out the trusts created by the will. Jones v. Atchison, Topeka, & Santa Fé Railroad, 150 Mass. 304. Smith v. Fellows, 131 Mass. 20. We think, therefore, that the decree of the Superior Court should be modified so as to permit the executors, if they desire, to prove the balance, if any, which will remain due on the notes after deducting therefrom what may be realized from the security which they have. So ordered.