Hampton v. Shehan

GOLDTHWAITE, J. — We are unable to see any reason upon which the demurrer to the plea was overruled. The validity of the consideration for which.the note was given, is admitted by the omission to controvert it, and therefore the proposition asserted by the plea seems to be, either that the note cannot be enforced in an action at law, as having been given by one executor of an estate to another; or because the suit cannot be sustained for the use of the principal maker of the note, in connection with others, in a representative capacity, where his surety is the defendant to the suit. This is essentially different from the case of Chandler v. Shehan, recently determined, and in no manner involves the same principle. In considering the soundness of this plea we shall examine, 1st. The effect which the note declared on produces on the action: and 3d. The legal effect of the note assuming it to be given for a consideration connected with the assets of the estate. Neither the consideration, or its connection with the assets, is disclosed in the pleadings, and for this reason, independent of any other, the demurrer should have been sustained; but as the judgment of the Court below may have turned on the latter point it is not improper to be examined. The practice, so common in our Courts, of disclosing in the declaration for whose use a suit is brought prevents the abatement of the suit, when the nominal plaintiff dies before its termination, and makes the usee liable to a judgment for costs. [Clay’s Dig. 316, § 32; 313, § 3.] Beyond this, it is nothing more than an admission of record that the beneficial interest is in others, besides the party suing. [Brown v. Foster, 4 Ala. Rep. 282.] If the admission in this case went so far as to show that Chandler, the principal in the note, was entitled to the sole beneficial interest, there would be much reason for his surety to claim exemption from suit; on the principle that the law abhors and avoids circuity of action. Therefore it is in most instances, that a defendant will be permitted to show as a defence, that the actual plaintiff, if a recovery is had, will be liable to reimburse or indemnify him. But [297] to let in such a defence the liability to reimburse, or to indemnify, must be co-extensive with the claim or demand which it is proposed to defeat. [Webster v. Randall, 19 Pick. 13.] The admission here is, that Hampton, the nominal plaintiff, is a trustee for the joint benefit of a third person and the principal in the note sued on against a surety as well as himself, not as individuals, however, but as the representatives of an estate. It is evident that Chandler, in his representative capacity, is not bound to reimburse or indemnify Shehan for any loss which may be. the consequence of this suit; though as an individual he is bound to save his surety harmless. As the interest of Chandler in this suit is not in the same right as that in which he is bound to reimburse, nor co-extensive with that sought to be enforced, it does not fall within the rule before stated, and therefore, the interest disclosed by the declaration alone, or in connection with the plea, furnishes no bar to the action. The other point, as we have seen, is not contained in the plea, but we consider it, to prevent the cause from returning to this Court on that ground. 2. At an early day it was held in this Court, that one executor might sue another at law, upon an express promise. [Phillips v. Phillips, 1 Stew. 71.] There, however, the plaintiff was a legatee as well as an executor, and the estate had been settled except the single transaction. Although this decision is in accordance with our own judgment, we shall endeavor to show it to be well sustained by analagies entirely satisfactory, though it is laid down in a recent work upon the duties and powers of executors, that in general one cannot sue another at law. [Wms. on Ex. 627.] It was considered in Brannan v. Oliver, 2 Stewart 47, that an executor might lawfully purchase at his own sale, especially if he has an interest; and such is the rule in Virginia under statutes less favorable to executors than our own. [Hudson v. Hudson, 5 Mum. 180; Anderson v. Fox, 2 H. & M. 245; Mackay v. Young, 4 Ib. 430.] The law is considered otherwise by the English Courts where an executor is classed with other trustees, and inhibited from purchasing the trust estate. [Wms. on Exr’s. 613.] [298] Though if he pays a debt out of his own money, he may elect to take any specific chattel as his own, and by such election the property is changed. [Ib. 409.] If an executor may lawfully become the purchaser of the estate of his testator at a public sale, it would seem impossible to interpose any valid objection to the claim of -one executor to do so, when others are joined with him in the execution of the will; and upon such a purchase the question immediately arises, whether all the executors become responsible for the sum of the purchase, or whether he who purchases alone is so. It is laid down in most of the elementary works as a general rule, that each executor is responsible only for his own acts, and for the assets which came to his own hands — 3 Bac. Ab. 31; and it is the well settled course - of decision, both at law and in equity, that one of several executors cannot discharge himself by showing that the assets which came to his hands were transferred by him to a co-executor. [Cross v. Smith, 7 East. 246; Langford v. Gascoigne, 11 Vesey, 333; Edmunds v. Crenshaw, 14 Peters.] It is evident there would be a peculiar hardship in applying the latter rule, so as to make one executor liable for a purchase by another, and this too, when thete was' no p’ower to prevent the purchase. On the other hand, it would probably be pernicious in the extreme, if one executor, through the medium of a purchase, could possess himself of the entire estate, in defiance of the wishes of those who are associated with him in the trust. The cases to which we have given a reference, establish, that a purchase by an executor at his own sale is valid, and that of Childress v. Childress, 3 Ala. Rep. 752, decides that the sum of a note thus given for the purchase money, may be properly charged to hint in his settlement with the Orphans’ Court. Such, doubtless, is the true rule where all the executors assent to the purchase. But how is the money to be secured when the co-executors are not prepared- to, or do not, assent to ah appropriation by the other ? Can it be supposed they ■ have no means to protect themselves from loss or injury by requiring security from the purchasing executor ? We consider it entirely clear, therefore, to avoid those consequences, induced by the conclusion, that a valid purchase may be thus made, that the other executors, or any one of them, may require security from the pur [299] chasing executor, and that a note given for such a consideration must be sustained. What the consequences may be with respect to the settlements between co-executors, or with legatees or distribu tees,“should not now be adverted to. The result of our judgment is, that the demurrer should have been sustained, and as this is conclusive of the case, the other questions are not examined. Reversed and remanded»