McEndree's Adm'r v. Morgan

Green, Judge : The most important question involved in this case is: Has an executor under any circumstances a right to recover back from a legatee an excess of advancements, which may have been made to him on a pecuniary legacy above his ratable proportion of his legacy, and, if so, under what circumstances? In England, it seems to be settled by the authorities, a legatee is not bound to refund at the suit of the executor, unless the payment by him was compulsory, or unless the deficiency was created by debts, which did not appear until after the payment of the legacy, in either of which cases the executor might compel the legatee to refund the excess paid on the legacy. See Toll. Ex’rs 341; 2 Fonbl. Eq. 376; Coppin v. Coppin, 2 P. Wms. 296; Orr v. Kaines, 2 Ves. Sr. 194. But the general spirit of the decisions in Virginia and West Virginia has relaxed much of the severity of the ancient English cases, when no fraud or misconduct is imputed to the executor. See Jones' Ex’r v. Williams, 2 Call 103, top p. 86; and Burnley v. Lambert, 1 Wash. (Va.) 312; Gallegoe’s Ex’rs v. Lambert, (Tucker’s opinion,) 3 Leigh 465. I am therefore of the opinion that there is no inflexible rule, which refuses to an executor under any circumstances the right to recover back from a legatee an excess of advancements, which may have been made to him even when the deficiency was created by debts, which appeared before the payment of the legacy, and the payment was voluntary; but in such case the executor will have to make a very strong case to rebut the almost conclusive presumption, that he had a sufficiency of assets to justify the payment of the legacy, which arises from the mere fact, that he has paid the legacy. As an instance, where the law would permit an executor to recover, I may put the case, where the assets were apparently abundant, when the legacy was paid, but were subse — 532 — quently rendered deficient by a general and destructive fire. See Miller v. 1 Rand. (Va.) 438. The general rule is, as laid down in English cases quoted above, and, to justify a departure from this general rule, the executor must show, that in the execution of the will he has done everything, which a prudent man ought to have done, and has done nothing, that a cautious man ought not to have done; and it will not suffice to show, that he has been guilty of no fraud but has acted 'bona fide and with honest intentions. That the English rule has not been relaxed in Virginia or West Virginia beyond what is above stated, abundantly appears from the cases of Davis v. Newman, 2 Rob. (Va.) 664; Nelson's Ex'r v. Page, 7 Grat. 160; Anderson v. Piercy, 20 W. Va. 282; and Shriver v. Garrison, 30 W. Va. 456, (4 S. E. Rep. 660). We will now apply this law to the facts appearing in this case. The appellants claim, that William A. Morgan, the executor of Jacob Morgan, paid on the legacy to Mrs. Anne E. McEndree more than her ratable proportion ; and that in this suit the executor has a right in effect to recover it back by offsetting it against the debt of her husband, John EL McEndree. The deficiency in this case was credited by debts due from the testator, of which the executor had full knowledge, the last payment having been made on this legacy of $250.00 on May 8,1868, which was thirteen years after the qualification of William A. Morgan as executor and many years aft.er every debt of Jacob Morgan, so far as the record shows, has been presented to the executor for payment- and settled. It is therefore obvious, that under the English rule the executor would have no right to recover of the legatee any excess of payment, which he may have made on this legacy. Is there anything, which would justify us in holding, that under the more liberal rule in this State and Virginia the executor, William A. Morgan, ought to be allowed to recover back any such excess of payment, as he may have made on this legacy to Mrs. Ann E. McEndree ? It seems to me, there is not. It is true, in making the payments on this legacy he seems to have acted bona fide and with good intention but with great imprudence and want of proper caution. In exe — 533 — cuting bonds to John H. McEndree, on the 31st of December, 1855, for the amount of the indebtedness of his intestate to John H. McEndree he paid and satisfied that indebtedness, and he thereby made himself personally responsible for the amount of said two bonds. It is true, he added to his signature, William A. Morgan, this description of himself: “Ei’r of Jacob Morgan, dec’d; ” but as these bonds did not bind him to pay these amounts named in them as the executor of Jacob Morgan but individually, the addition he made to his signature must be regarded as a mere diseriptio personae, and when these bonds were sued on, the judgment, which was rendered on them, ought to have been a personal judgment against him to be paid out of his own assets and not, as it was, a judgment to be paid out of the assets of his testator in his hands to be administered. That he regarded this as a payment of the indebtedness of the estate of John H. McEndree was clearly shown by all the settlements, which he had made of that estate; for in them he claims, that he paid J ohn H. McEndree on December 31,1855, these two sums, $464.49 and $85.75, the exact amounts of these two bonds. Five days before that John H. McEndree had purchased property at the public sale made by this executor of the negroes and other personal property of Jacob Morgan, deceased, to the amount of $2,576.00. This amount John H. McEndree wished to settle by treating it as a payment to his wife on her legacy of $3,000.00, and that the debt due to him from the testator should be settled by William A. Morgan, executor, giving him his bonds therefor. William A. Morgan objected to this at first but finally assented thereto. William A. Morgan as executor had clearly the right to insist upon the applying of a portion of John EL. McEndree’s purchases to the payment of the debts due from the estate to John EL. McEndree, and to refuse to allow the whole of his purchases to be applied as a payment on the legacy; or, if he assented thereto, he had a right to require under the laws of Virginia a refunding bond, requiring Mrs. McEndree to refund her due proportion of any debts or demands against tlie testator and also the costs attending the recovery of such a debt, (see Code Va. 1849;) but, having waived this right at that time he can not now claim it. — 534 — He endeavors in his answer to excuse himself for want of prudence in this matter by making these statements: “ Respondent flatly refused to give either note or bond, on the ground that said McEndree was himself indebted to the estate of Jacob Morgan in the said sum of $2,576.00 by his purchase of the slaves above mentioned, but offered to credit on said purchase the amount of the two claims thus presented. Inasmuch, however, as said McEndree was under the will of Jacob Morgan entitled, in right of his wife, to a legacy of $3,000.00, and as respondent had not proceeded far enough in administering the estate of his testator to ascertain how much of said legacy could be paid out of the assets thereof, said McEndree insisted that, for the time at least and until the estate of Jacob Morgan was further administered and its exact amount disclosed, he should be permitted to treat the said $2,576.00 as a distribution upon the aforesaid legacy, and that respondent should give him his bonds as executor for the two claims he presented as a creditor of the estate, in order to keep the statute of limitations from running against them, and to keep them in force for a final settlement between the executor of J acob Morgan and said McEndree as legatee and creditor. And respondent here expressly says, that he then executed and delivered said two bonds with this distinct understanding and for no other purpose whatever ; that he so executed them at the earnest request and advice of said McEndree, to be paid, if the estate of Jacob Morgan was sufficient to pay its debts and justify the dividend upon his legacy already made to said McEndree, but to be abated in a final settlement, if said dividend should prove to be more than the condition of the estate permitted, to the amount of such excess.” Respondent attempted to sustain these statements only by the deposition of George W. Hall taken October 20,1885, who deposes as follows: “ I was present at the store, and heard the conversation between them in regard to the settlement of the estate of Jacob Morgan. Mr. McEndree claimed a settlement of the store account, and Mr. Morgan told him that he had not settled for the property, negroes, and other property he had bought at the sale, amounting to some two or three thousand dollars: don’t recollect the exact amount. — 535 — Mr. Morgan stated that, so far as the estate was settled, he had more in his hands than was sufficient to pay his store account and his wife’s portion of the legacy. Mr. McEndree then urged Mr. Morgan to give him a note for the store account, which Morgan declined at first; but McEndree importuned him very much, and appealed to him as his brother-in-law ; that he had no idea of taking advantage of him at all, as he was young and inexperienced; that he wanted it as a sort of memorandum; that he would not think of claiming it unless the estate held out to pay the legacies. I said to Col. Morgan I would not think of paying anything on the legacy until the store account was paid, as debts were to be paid before legacies. It was, when I said this, that McEndree made this appeal to him as a brother-in-law. Gol. Morgan proceeded, under protest, to give this note, and at McEn-dree’s earnest solicitation. McEndree assured him that no advantage would be taken of this note if the legacy did not pay out.” Upon cross-examination this witness stated that the bonds of William A. Morgan to John H. McEndree, he thought, were executed before the time of the above conversation in his presence. The answer of William A. Morgan further claims as follows : “ And respondent further says that he reluctantly, and only after great persuasion and entreaty, conceded to this arrangement, and after the repeated assurance of McEn-dree that it was necessary to keep said claims from being barred by the statute of limitations, and was for no other purpose, and that he would hold said bonds for no other purpose whatever, and only until a final settlement of the estate could be made. Respondent in this entire transaction, now so fully detailed, was guided by the counsel and suggestion of said John H. McEndree, who was his brother-in-law, a man of large business experience, especially in matters pertaining to the administration of estates, and was to a considerable extent, by reason of such relationship and experience, the counsellor 'and confidential adviser of respondent, then a very young man and unversed in business, in his actings as executor.” These allegations are an effort to set aside and treat as null these transactions between the executor and John H. — 536 — McEndree, on the ground that John H. McEndree occupied toward his brother-in-law, William A. Morgan, the position of counsellor and confidential adviser and fraudulently misled and deceived him. The evidence totally fails to establish this position. William A. Morgan was of course more than twenty one years of age. His father regarded him as a man of good business capacity, or he would not have appointed him one of his executors. In the transaction stated above it is obvious, that William A. Morgan and John H. McEndree occupied opposing positions, and it was impossible to suppose, that W illiam A. Morgan was controlled by the advice of John H. McEndree. William A. Morgan at that time seems to have understood the transaction differently from what the witness Hall in his deposition seems to have considered it; and the conduct of William A. Morgan is entitled to much more weight than the statement of a single witness of the substance of a conversation, made some thirty years after the conversation was held. William A. Morgan regarded the execution of his bonds to McEndree as an absolute payment of the debt due from his intestate to McEndree, for he so claimed it in his settlements of his executorial accounts; and he also regarded the purchases of McEndree, amounting to $2,576.00, as a payment on the $3,000.00 legacy to McEndree’s wife. That these were the views of William A. Morgan appears from Commissioner Cooke’s report, returned as long ago as April 20, 1861, exhibiting the transaction between him and John H. McEndree, as understood by the parties, accurately. They can not at this late date be set aside by the deposition of one single witness in reference to a conversation thirty years ago. That William A. Morgan continued to regard these transactions as represented in his settlements is shown by the fact, that as late as May 8,1863, he paid John H. McEndree $250.00 more, due to his wife on her legacy; vhich shows, that at that late date he was satisfied, that he had not over paid the legacy of Mrs. McEndree. It would indeed require strong evidence to prove, that the executor, William A. Morgan, trusted implicitly to the creditor, John H. McEndree, in making the settlement of December 31,1855, when he gave his bonds for the debt his — 537 — testator owed to McEndree, and when the amount, which McEndree owed the executor for slaves of the estate bought by him, it was agreed, should be credited on the legacy, which had been left McEndree’s wife; and that the executor, William A. Morgan, only agreed to this with an understanding, that these bonds should never be paid, if it should ultimately turn out, that by this settlement more would be paid on the legacy to McEndree’s wife than her ratable portion. The parties to this settlement had antagonistic interests, and neither one of them can claim, that he put implicit confidence in the other, and that his confidence was abused •, for from their respective attitudes towards each other neither had a right to put such special confidence in his opponent. Of course his claim to disregard this settlement with McEndree, made more than thirty years before, and which he as executor had carried out by obtaining on his settlement credit not only for the payment of this debt but also for payment on the legacy to McEndree’s wife of the full amount of purchase at the sale of the testator’s property by the executor, can not be allowed. But even on the evidence, which has been produced after the lapse of thirty years, it is really by no means certain, that, when this $2,576.00 was credited on Mrs. McEndree’s legacy of $3,000.00, McEndree really received more than the ratable proportion, which was due to his wife on this legacy. The claim on the part of the counsel of William A. Morgan, that McEndree was entitled to receive but five elevenths of his legacy of $3,000.00, was, as shown by Commissioner Cooke’s settlement, based on the distribution of but two thirds of the estate, there being excluded from this distribution the one third of the personal estate bequeathed to the widow for life. Upon her death McEndree would have been entitled to his ratable share of this one third of the estate, that is to say, to one half of the amount, to which he was entitled upon the first distribution, that is to say, to five twenty seconds of his $3,000.00 legacy, that is to say, $681.80,— whereas , there was paid him then but $250.00. If the difference, $431.80, exceeds the supposed over-payment as set out in Commissioner Cooke’s report, which was $318.72, it would seem, that, when John H. McEndree receives the amount — 538 — decreed in his favor by the final decree in this cause, he will not have received more, than he was justly entitled to under the will of Jacob Morgan. But it is now claimed, that he has no right to require this to be paid by William A. Morgan, because this one third of his personal estate had been by him transferred to the widow in the shape of certain stock and money, to be held by her for her natural life, and on her death to revert to the estate of Jacob Morgan; and though William A. Morgan was still the executor of Jacob Morgan at the death of his widow and certainly received a portion of the proceeds of this stock after her death yet he claims in his answer, he is not responsible to the plaintiff as a legatee for any portion so received, as he must be regarded as having received it not as executor but as agent of John H. McEndree and the other legatees; that, after he paid over said stock to the widow, he as executor had no further concern with it, but on her death it went to her personal representative in trust for the legatees of Jacob Morgan including said John H. McEndree’s wife. As I understand the law, William A. Morgan as executor of Jacob Morgan ought to have paid the dividends on these stocks and the interest on these moneys, making together one third of the personal estate of Jacob Morgan, to his widow during her life and at her death accounted for the stock itself and the principal of the money as executor of Jacob Morgan. Had he done this, the controversy, which has ensued with the personal representative of John H. McEndree, as shown in this cause, never could have arisen, as William A. Morgan would not have sustained any damages, such as he has now sustained. This damage is therefore the result of gross negligence and want of proper precaution on his part and not the result of having paid to John H. McEndree more than he was entitled to. The only other question in this cause is: Is the claim of John H. McEndree barred by the statute of limitations ? The suit is on a judgment improperly rendered against William A. Morgan as personal representative, it having been given on two bonds of his signed by him individually. This judgment was rendered by the Circuit Court of Jefferson county on November 30, 1870, and no writ of error has been — 539 — asked to reverse it by either party, and it is now too late to review it in any manner. It m ust therefore be regarded as correct. An execution issued on this judgment on December 16, 1870, returnable to March rules, 1871, was then returned, “ No property found in the hands of William A. Morgan, executor, to satisfy the within execution. March 6, 1871.” This kept the judgment alive till March 6, 1881, or for 10 years under our statute. See Code W. Va., ch. 139, § 10, p. 665. Another execution could issue on this judgment within ten years, that is, at any time prior to March, 1881. One was legally and properly issued on September 13, 1880, returnable to December rules, 1880, and under said statute, and the decisions of this Court, (see Werdenbaugh v. Reid, 20 W. Va. 588, and Shipley v. Pew, 23 W. Va. 487,) this suit to enforce this judgment would not be barred until 10 years after the returning of this last execution, that is, in December, 1890. This bill in this cause was filed at July rules, 1881, or within less than a year after the returning of the last execution ; and therefore this suit was not barred or affected by the statute of limitations. There was therefore no error in the decrees of December 20, 1884, referring this cause to a commissioner to settle the executorial accounts of William A. Morgan, executor of Jacob Morgan, nor in the decree of June 20, 1887, confirming the commissioner’s report and decreeing that J. Garland Hurst, administrator de bonis non of John H. McEndree, deceased, should recover of said William A. Morgan the sum of $2,109.13, the amount of said judgment with interest and costs, with interest on the same from the date of said decree, June 20, 1887, till paid and his. costs. The said decrees of December 20, 1884, and of June 20, 1887, must therefore be affirmed, and appellees must recover of the appellant their costs in this Court expended and damages according to law. Affirmed.