Conner v. McIlvaine

The Chancellor.— This is a bill for contribution filed by the administrator of Samuel W. Chambers deceased, who was one of the — 34 — executors of John G. Chambers deceased, against the administrators of his co-executors Wrexham McIlvaine also deceased. The two executors while living, October I, 1856, passed a joint testamentary account, upon which there was an unappropriated balance, of $1156.65. After Mcllvaine’s death, Chambers as surviving executor passed a second testamentary account purporting to exhibit the joint administration up to Mcllvaine’s dfeath November 7, 1857, on which second account there was an unappropriated balance of $1309.40. Samuel W. Chambers then died, and the complainant as his administrator passed a third testamentary account of the estate of John G. Chambers November 5, 1858, showing an unappropriated balance of $1032.39. After this Henry C. Cooper as administrator d. b. n. c. t. a. of John G. Chambers recovered against Samuel W. Chambers’ administrator, a judgment for $1656.15 as the whole amount of unappropriated assets of John W. Chambers’ estate. This judgment Samuel W. Chambers’ administrator has paid, and, by his bill, claims contribution in one-half the amount of it from Mcllvaine’s estate. There can be no doubt that the judgment recovered against Samuel W.- Chambers’-administrator was for the unappropriated balance of the personal estate of John G. Chambers remaining unadministered by his executors, Chambers and McIlvaine. It could not be otherwise from the nature of the action, it being a suit by an administrator d. b. n. against a predecessor in the administration, brought upon the testamentary bond. It is moreover specifically shewn by the probate upon which the judgment was recovered. The attention of the Court was called by the defendants’ counsel to a discrepancy between the probate and the judgment, the judgment being for $226.51 less than the probate, also to the fact that the probate was made some two years before the judgment. This discrepancy — 35 — of amount, even if it were wholly inexplicable, could not affect the character of the judgment; but it may probably be explained by the fact that the probate was made in the interval between the passing of the second testamentary account by Chambers and of the third account by the complainant. The probate therefore stated the unappropriated balance appearing on the second account which was $1309 with interest from Nov.- 5, 1857. The award of the referees was made after the passing of the third account by which the unappropriated balance was reduced to $1032.-39 with interest from Nov. 5, 1858. The referees ought to have taken, and probably did take into consideration, the balance shewn by the third account. A calculation of the amount due John G. Chambers’ estate taking the unappropriated balance by the third account will come within a few dollars of the sum awarded and for which the judgment was rendered. The recovery of the judgment against Chambers’ administrator and its payment by him do not alone entitle his administrator to contribution from the estate of Mc-Ilvaine, Mclivane’s estate is chargeable in this suit only for such part of the assets as he had collected in his lifetime and held unadministered at his decease ; and whether McIlvaine had collected any and what part ot the assets, it is incumbent on the complainant to shew, in order to his recovery in this cause. No testimony has been taken on either side to shew by which of the executors of John G. Chambers the assets were in fact collected, whether by one alone or by both and if by both how much by each. Both the executors are dead and no evidence remains of their transactions except what appears upon the two testamentary accounts, the first passed by both executors October 1,1856, and the second passed by Chambers May 12, 1858 after Mcllvaine’s — 36 — decease. These are in evidence. By them it is to be determined whether Wrexham McIlvaine at his decease held any part, and, if so, how much, of the unadministered assets of John G. Chambers’ estate. The first of these accounts shews a balance unadministered, at its date, of $1156.65, bearing interest from September 25, 1856. It purports to be, and is by the answer admitted to have been, a joint account, passed by both the executors ; and they are charged as jointly holding the unappropriated balance. Prima facie it is evidence that the balance was held jointly. Proof to the contrary would be admissible as between the executors in a suit for contribution. It would be competent for the defendants to shew, notwithstanding the form of the account, that Chambers did, in fact, receive and hold the balance ; but, in the absence of any such proof, the Court is bound to conclude that, at the time of the passing bf the first account, one half of the unappropriated balance shewn by it was in the hands of McIlvaine, that is one half of $1156.65 with interest from September 25, 1856. I have considered at this point the effect of that part of the answer which in substance denies that any part of the assets were ever received, dr, if received, that they were held by McIlvaine ; charging that the whole of them .were either collected by Chambers, or that, if any part were received by McIlvaine, such part was by him immediately deposited to Chambers’ credit. This part of the answer is, I think, responsive to the bill. Though the bill does not in direct terms allege that McIlvaine received a portion of the assets, still it alleges what is equivalent, viz. that the balance of assets, for which the judgment was recovered, was in the hands of both executors ; and jndeed without such an allegation either in terms or in effect, the bill would shew no equity. The complainant therefore is not in a position to question the — 37 — responsiveness of the answer. But the answer, although on this point responsive, is not entitled to be received as evidence under the rule. For the denial of the answer is not made as to matters within the personal knowledge of the defendants. Pennington vs. Gittings, 2 G. & J. 272. It is a denial (and could be no more) upon mere belief and information,wbhc\\ would not render the defendants liable for perjury: and such a denial is not within the purpose for which a defendant is put to his answer, which is a discovery, or the disclosure of matters supposed to be within his own knowledge. For these reasons where an answer alleges as facts what the defendant could not personally know, though it may be responsive to the bill, the rule requiring two witnesses, or one witness with corroborating circumstances, or very strong corroborating circumstances, to countervail its effect, does not apply, but such an answer merely puts the complainant to prove the allegations denied. See 2 Dan. Ch. Prac. 842 and the note with cases cited. Assuming then that Wrexham McIlvaine held one-half the unappropriated balance shewn by the first testamentary account the next inquiry is whether, upon the evidence, this balance was administered in his lifetime or remained in his hands at his decease. This question is settled by the second testamentary account passed by Chambers after Mcllvaine’s decease. This purports to be an account of the administration as made by both executors from the date of the first testamentary account up to Mcllvaine’s decease. Now, from an examination of the second testamentary account it will appear that, prior to Mcllvaine’s death, there was applied by the two executors to debts against the estate (not credited to the executors in the first account) the sum of $2,845.09. There was allowed to the two executors as commissions upon the assets administered before Mcllvaine’s death $139.14, also for Register’s fees $13.80. — 38 — These items added to the debts make a sum total of $2,998.93. To this amount then there was clearly, in the interval between the passing of the first account and Mcllvaine’s death, joint administration of the assets of John G. Chambers’ .estate. The sum thus administered far exceeds the unappropriated balance jointly held at the date of the first account $156.65- with its interest. If therefore nothing appeared to charge McIlvaine beyond this balance, the second account by shewing a joint administration, during his lifetime, of a larger sum would operate as a full discharge. But while this account does shew that the old balance of $156.65 and its interest, was administered in Mcllvaine’s lifetime, by the payment of debts, it also charges Wrexham McIlvaine with the receipt of additional assets after the first account was passed. It therefore becomes necessary to ascertain how far these additional assets were also administered in his lifetime, whether at his death any part of them remained in his hands and if any how much. An examination of the account upon this point shows that the assets charged in it- as having been jointly received by the executors before Mcllvaine’s death are (1) the unappropriated balance on the first account which with interest amounted to 1,233.76, (2) the proceeds of the steam saw mill, $2,200.00, with $146.67 for interest. But in the allowance of commissions on the other side of the account there is evidence that only part of this sum was collected before Mcllvaine’s death, that is $1,452.83. This with its interest amounted to $1,549.68. Only this portion of the proceeds of the steam saw mill can be treated as having been jointly received. That the whole proceeds were charged is explained by the fact that this account was passed May 12th, 1858, six months after Mcllvaine’s death, and meantime Chambers had collected the balance of these proceeds of sale. The unappropriated balance on the first account with its interest, and that portion of the proceeds of the steam — 39 — saw mill collected before Mcllvaine’s death with its interest, amounted to $2,783.44. This is the whole amount, with respect to which as assets jointly received according to this account, McIlvaine was chargeable. The amount •falls short of the debts paid and commissions and fees allowed, ($2,998.93). The result is that all the assets jointly held by the executors were administered, and with respect to these Mcllvaine’s estate cannot be chargeable. But the second account, in addition to the assets jointly received, charges McIlvaine alone as having collected before and up to September 5, 1857, certain small credits of the estate amounting in the whole, with interest, to $203.85, For so much of this as shall not appear to have been administered in his lifetime his estate would be liable. Then does this sum, or any part of it, appear to have been administered ? Of the debts paid and commissions and fees allowed to both executors, ($2,998.93), there remain after applying the assets charged as jointly received, a balance of $315.49. Out of what assets then must we consider that this balance of the debts ($215.49) was paid? Let it be observed here, that all the payments are credited as if made by both executors and that in addition to the assets which they are charged to have held jointly, and which were short of the debts and allowances, by $215.49, both executors are charged with assets as received by them severerally; McIlvaine with $203.85 as before stated, and Chambers with sums amounting to $561.30, being the amount of three debts due to John G. Chambers estate, one from himself and twp from other persons which he assumed. These charges are made as of November 5,1857, the day on which the last debt amounting to $747.17 was paid. On the face of the account it does not appear which of the executors, after the joint assets were exhausted, paid the remaining balance of the debts. — 40 — Now, assuming, as we have done, that the assets jointly-held were first applied to the debts, leaving a balance of $215.49, this balance must of course have been paid out of the assets charged to the executors severally, one or both. And as the debts are credited as if paid by them jointly, • each holding assets at the time, it seems the natural and reasonable presumption that, each contributed equally out of the assets held by him. Upon this presumption we should credit McIlvaine with one half the balance, that is, with $107.75 as paid out of the assets charged to him severally. This would leave in his hands, of these assets, unaccounted for, $96.10 bearing interest from November 5, 1857. I must treat this sum as forming part of the unappropriated balance of the second account, of which balance Chambers in his lifetime applied a portion to the debts credited in the third account, the one passed by his administrator and the residue was recovered from his administrator by the administrator d. b. n. c. t. a. of John G. Chambers, the original decedent. Chambers’ administrator, therefore, is entitled to be reimbursed out of Mcllvaine’s estate the sum of $96.10 with interest from November 5,1857. If this sum be added to the several items of assets, which, upon this account, as we have been dealing with-it, will appear to have been held unapplied by Chambers, the sum of the whole will be the unappropriated balance of this, the second account, ($1,309.30). Thus the assets received by Chambers separately in Mcllvaine’s lifetime, being his own debt to the estate and the two debts assumed by him charged as of November 5, 1857 with the interest, amount to $561.30, deduct from this $107.74, the sum we have considered as administered out of the assets held by each executor severally and there remains $453.56. Add to this the portion of the proceeds of the mill received by Chambers after Mcllvaine’s death, less the commissions upon it.—i. e. $796.99 less $37.35 (making $759.64 to lie added) and we have $1,213.20. To this add — 41 — the unapplied balance in Mcllvaine’s hands at his death ($96.10) and it makes $1,309.30, which is the unappropriated balance of the second account. It is stated on the account, to be $1,309.40, but there is an error of ten cents apparent on the face of the account It occurs in the addition of the assets on the charging side of the account. I desire to be understood as not undertaking to decide out of what assets in point of fact the debts of John G. Chambers were paid, or in other words, which" of the assets charged in the second account were actually administered, and which of them remained to form the unappropriated balance of that account. On these points there is no evidence except the account, and that does not show specifically how the several items of the assets charged were disposed of. In such case a conclusion can be reached only by applying what are the most natural and reasonable presumptions with respect to the order of application as between different classes of assets. These presumptions seem to be, (1.) That the debts being credited as if paid by both executors, the payments were made with assets jointly held, so far as these may go. (2.) That, as to the application of assets charged to the executors severally, inasmuch as both are equally credited with the payment of the debts and held assets at the time, it is presumable each contributed equally to such payment. It is upon these presumptions, in the total absence of direct proof, that I have felt obliged to deal with the second testamentary account. It remains now only to advert to the reason why the Court has treated McIlvaine as if bound for the assets charged to him in the second testamentary account. It is an account filed by Chambers alone as the surviving execu — 42 — tor, to which neither McIlvaine nor his administrator were parties. It could not, therefore, have been introduced by the complainant to charge Mcllvaine’s estate ; and if the defendants were not obliged, in their own defence, to introduce this account the complainant could not have presorted to it as evidence. But McIlvaine being charged in his lifetime as jointly holding the unappropriated balance, on the first account, the account passed after his death by Chambers becomes material to the defence of Mcllvaine’s estate by shewing that the unappropriated balance of the first account was administered in his lifetime. To show this in defense it is evidence as an admission on the part of Chambers. But the use of it as an admission to this extent against Chambers makes it evidence also in his favor for all that appears upon*it. It is a rule that, “in general, if a party read a portion of a writing or conversation in evidence, he gives credit to the whole and affords an opportunity to his adversary to use any other portions that may suit his purpose.” Gres. Eq. Ev. 357. It was so held by Lord Hardwicke in Carter vs. Lord Coleraine cited by Gresley, and in Blount vs. Barrow, cited in 4 Bro. C. C. (75.) There has been much controversy as to how far a defendant might read as evidence his own answer in the cause in order to qualify admissions in it which are used by the complainant; but no question has been made, so far as I can find, that a- party introducing, for proof to one purpose, a collateral instrument, such as an account, or letter, makes the whole of it evidence. This is true even as to an answer in Chancery made in another cause than that in which it is introduced. In such case the whole answer becomes admissible. Gres. Eq. Ev. 324; Gilb. on Ev. 51; Boardman vs. Jackson, 2 Ball & Beatty, 386, cited in Gresley, 359. The weight tobe given to that part of the account favorable to the party who made it, may be very small. What is in his favor may be rejected and his admission alone credited. Still, the whole instfu — 43 — ment is in evidence and ¡the Court is at liberty to consider and weigh it for what iHs worth. In the present case I have thought that a just conclusion would be most likely to be attained by giving credit to all that appears upon the second testamentary account, and making a settlement between the parties accordingly. Let a decree be entered for the complainant for $96.10 with interest from November 5, 1857.