Watkins' Adm'rs v. State ex rel. Shaw

Stephen, J. delivered the opinion of the Court, This action was instituted against Nicholas Watkins, of Thomas, the appellant’s intestate, one of the sureties of John Boyd Watkins, now deceased, to recover from him, in his ,. character of surety for said Watkins, as guardian to Richard W. Wells, the appellee’s intestate, a certain sum of money, charged to be in the hands of Watkins, his principal, and for which it was charged he had not accounted according to law. This sum of money was claimed to be recovered by the appellee, as administrator of Richard W. Wells, one of the representatives of John Wells, deceased, who by his will appointed John B. W., and Philemon Sherwood, his joint executors. It no where appears when John Wells, the testator, died; but it appears that letters testamentary on his estate were granted to the said John B. W., and Philemon S., on the 17th day of June, 1803. It was also proved, that Richard W. W. died a very few years after his father, and while an infant. An inventory of the estate was returned by the executors, on the 26th day of July, 1803, and an account of sales dated the 16th December, 1803, shewing that assets came to the hands of the said executors, to the amount of $5244 77, after deducting the specific bequests. No proof was offered of’any settlement in the Orphans Court, prior to the institution of this suit, which was commenced on the 25th October, 1815. It does not appear by any proof in the cause, when Philemon S., the co-executor of Watkins, died, the pleadings and,the evidence being perfectly silent as to that fact. This suit being instituted on the guardian’s bond, the question which this Court is called upon to determine is, whether, upon the above statement of facts, the administrator of the ward was entitled to recover? This Court are of opinion that where a sole executor sustains the two-fold character of executor and guardian, the law will adjudge the ward’s proportion of the property then in his hands, to be in his hands in the capacity of guardian, after the time limited by law for the settlement of the estate, whether a [226] final account has been passed by the Orphans Court, or not; upon the principle, that what the law has enjoined upon him to do, shall be considered as done, and from that time he holds the ward’s proportion of the property, by operation of law, in that character in which he would be entitled to receive it, upon a final completion of his trust as executor. But where, as in this case, there is a joint executorship, this construction of law cannot, consistently with principle, prevail ; because his co-executor is entitled to the possession of the assets, equally with himself, and the property of his ward cannot be legally considered in his hands, until he has actually received it. As to the powers and rights of co-executors, see Toller on Ex. 359: “Co-executors, we may remember, (he observes) are regarded in law as an individual person; and by consequence, the acts of any one of them, in respect to the administration of the effects, are deemed to be the acts of all; for they have a joint and entire authority over the whole property. Hence a release of a debt by one of several executors, is valid, and shall bind the rest.” . In this case, it is true John B. W. survived Sherwood, his co-executor, but it does not appear by the evidence in the cause, that his ward was then living, (which fact it was incumbent on the plaintiff to prove,) and if he was dead, his guardianship had expired, and he was no longer accountable in that character. JUDGMENT REVERSED.