In re Hall's Estate

Taft, J. The questions in this case arise upon the report of a commissioner to settle the administration account of Edward R. Skinner, executor of the will of Electa Hall. The commissioner charges the executor with five items, which are objected to, the first being for money on hand at the death of the testatrix; the second for wood, furniture [462] and other property left by the testatrix, which disappeared after her death. The commissioner reports that these items were lost to the estate by reason of the want of ordinary diligence on the part of the executor in the performance of his duty. They were part of the estate and lost through his negligence, and were properly charged to him. The third item objected to was for the testatrix’s wardrobe. At Electa’s death her husband, John Hall, was living, and it is claimed that the wardrobe of the testatrix belonged to her and should be accounted for as part of her estate. It does not appear how the testatrix acquired her wardrobe, whether it was in such a manner that it was held to her sole and separate use, or by gift from her husband. Nothing appearing in that respect we presume it was provided for her by her husband, whose duty it was to do so, and by the common law the title of it was in hint. Therefore, upon the death of the testatrix it should not be accounted for as a part 'ofher estate, as it was the absolute property of her husband. The inference from the report is that the husband took it upon the death of his wife, and always retained it. It never came into the hands and possession of the executor, and as it did not belong to the estate it cannot properly be charged to him. As bearing upon the question of the ownership of the wife’s apparel, it may be noted that V. S. 2403 and 2418, which give the wearing apparel of the husband to the widow, also provide that upon the death of a husband the widow’s apparel and ornaments shall not be appraised as a part of her husband’s estate. This provision would be wholly unnecessary if the title of the apparel and ornaments of the wife were not in the husband. As to the next item, the Aaron King note, it was the duty of the executor to have recovered it, and had he exercised reasonable diligence he could have controlled the proceeds of it. He is therefore chargeable with the sum named. And for the same reason he is chargeable with the remaining [463] item, tlie rental value of the farm for the three years it was occupied by Hall, the testatrix’shusband. The rent was lost through the negligence of the executor and the item was properly charged to him. The appellee excepted to the disallowance of his expenses in defending the suits of Steele and the appellant, Walton, against the estate of John Walton. These items were disallowed by the court below, and the appellant claims that the estate of Electa Hall had no interest whatever in the estate of John Walton, as Electa Hall had discharged the estate from all claims that she may have had as the widow of John Walton, in consideration of five hundred dollars paid her by the executor of the will, proved in Illinois; and that, therefore, the Hall estate had no right to defend the allowance of claims against the estate of John Walton. A portion of the five hundred dollars so received by her, was property within this jurisdiction, and were it needed in the administration of John Walton’s estate, within this state, it was liable to be recalled from her or her estate. Any debt due John Walton, the situs of which was in this state, was liable to be collected by the administrator here. The administration of the estate in Illinois only drew to it the assets having their situs in that state. The settlement with the executor in Illinois had no effect as to the assets that had their situs in this state. Walton v. Hall's Estate, 66 Vt. 455. We cannot say as matter of law that the widow of John Walton had no interest in his estate in this jurisdiction, notwithstanding her settlement with the executor of the will in Illinois. The liability of Mrs. Hall, or her estate, to be called upon by the administrator of John Walton’s estate here in Vermont, to return funds that she may have received in the settlement in Illinois, was such as gave her a right to contest the allowance of claims against that estate in this jurisdiction, gave her such an interest therein as justified the executor in contesting these claims, and it is reported that he acted in good faith and upon the advice of legal counsel of good [464] standing that such was his duty. He should be credited with these items. Whether the settlement with the estate in Illinois affected the widow’s rights in her husband’s estate in this jurisdiction it is unnecessary to consider. The court properly allowed the executor for his services two dollars per day, although he had charged his time at one dollar. He was ignorant of the statutory fee, and the commissioner reports that two dollars per day was a fair compensation for his services. He was not in law bound by his charge of one dollar. Hard v. Burton, 62 Vt. 314. The appellant claims that interest should be charged upon the account of the executor, but under the circumstances of this case, as reported by the commissioner, we do not so hold. An executor is chargeable with interest upon funds in his hands when he has used them for his own purposes; when he has received any interest for the use of them; and when, from any neglect of his, he has failed to receive interest. Whether an executor should be charged with interest must, to a great extent, depend upon the facts of each particular case, having regard to the well settled rules of law. In the case before us the executor had no money in his hands; at times was compelled to borrow to meet the expenses of administration, and although he was negligent in not collecting certain assets of the estate it is not found that he did not act honestly and in good faith. It does not appear that if he had not been negligent he would have had sums sufficient to have made suitable loans, or could, as a matter of fact, have received any interest whatever. All that he could have realized as assets it might have been prudent for him to retain to meet the constantly recurring expenses of the litigation in which the estate was involved. There is no finding of fact by the commissioner that he was negligent in respect to not receiving interest, and the ruling of the court below in respect to it was correct. The result of our holding is, that the executor stands charged with all the items charged him in the court below, except the one for the testa [465] trix’s wardrobe, namely, $2,020.20 less $50.00 being $1,970.20, and is credited with the sums credited him by the report of the commissioner, $1,302.80; and the accounts for lawyers’ fees and disbursements in contesting the claims against John Walton’s estate, $294.66 and $83.76, namely, $1,681.22, leaving a balance of $288.98. * Judgment is reversed and judgment that there is in the hands of the executor, belonging to said estate, $288.98, and interest since the judgment below, $11.02, — in all $300.00. The executor claims that the expenses incurred by him in this proceeding should be allowed him in the settlement of the account. It does not appear from the record that any exception was taken to the disallowance of the items by the county court, unless it is embraced in the exception to the judgment. The question should have been called directly to the attention of the court, so it could have been considered and passed upon. An exception to the rendition of a judgment does not reach back to a question, made upon trial, to which no exception was taken, and which it was not necessary to determine in order to render a valid judgment. Farrant v. Bates, 60 Vt. 37; Hartford v. School District, 69 Vt. 147. Whether the éxecutor is barred from a recovery of these items upon a final accounting is not before us and we need not consider. Neither party succeeding upon all his exceptions, no costs are allowed in this court, and it is ordered that the judgment herein be certified to the Probate Court.