Knapp v. Hanford

Peters, J. 1. To entitle the plaintiff to a verdict, she must have proved, in addition to the facts admitted, that Lucy Ann Weed died possessed of property sufficient to pay the legacy in question, and that the same came to the hands of the defendants. To this end the testimony of Henry Hoyt, jr., Benjamin Brush, and Nathan Olmsted was admissible to prove the existence of such property during her coverture ; for if it did not then exist, it could not have been in her possession at the time of her death; nor come to the hands of the defendants afterwards. 2. The testimony of Nathan Chichester was admissible, not only to prove the same facts, but also, that the property came to the hands of Ralph Hoyt, one of the defendants. 3. Proving property of the testatrix, in the hands of one of her joint executors, proves it in the hands of both : “For many executors to the same testator, are but as one man (Godol-phin’s Orph. Legacy, 156.) and all the executors, by joining in the bond to the judge of probate, become jointly liable for the default of each. Babcock v. Hubbard & al. 2 Conn. Rep. 536. Co-executors, says the late Chief Justice, are regarded by the Jaw as an individual person ; and of course, the acts of one regarding the administration of the estate, are deemed the acts of all; a release of one is valid, and binds the rest. 2 Dig. 449. Of course, the receipt of property by one, makes the rest accountable. 4.If any property of the testatrix came to the hands of the defendants, as her executors, their omission to make and exhibit an inventory thereof, was evidence of assets sufficient to pay the legacy in question. These facts were properly submitted to the jury, and found by them. If the executor enters upon the testator’s goods, without making an inventory, then the presumption of law will be against the executor, that he had goods sufficient, not only to pay the debts, but all the legacies also. Godolph. O. L. 151. If, says Swinburne, (vol. I. p. 325.) the executor enters to the testator’s goods, and will make no inventory thereof, then may every legatee recover his whole legacy at his hands. In this case, the law presumeth, that there is sufficient goods to pay all the legacies, and the executor doth secretly and fraudulently subtract the same. Orr v. Kaines, 2 Ves. 194. Shep. Touch. 455. Lovelass 37. The same doctrine has been recognized in Massachusetts, where in an action on an administration bond, for not returning an inventory [139] or rendering an account, it was holden to be necessary to aver, that some property of the testator came to the hands of the executors. Walker v. Hall, 1 Pick. 20. I would not advise a new trial. The other Judges were of the same opinion, except Brain-ard, J., who was absent. New trial not to be granted.