Mickle v. Cross

Eccleston, J., delivered the opinion of this court. Under the agreement, made part of this record, the only-subject for our consideration is, whether the appellee as administrator de bonis non of Samuel Neilson j can claim of the appellant as administrator of B. U. Campbell, who was executor of the said Samuel Neilson, interest from the 19th of December 1846/ tó tiie decease of said Campbell, in April 1855, upon the cash balance of $2631, reserved or retained by him, as appears by his fourth account, (ito enable the accountant to pay'to the honorable John Purviance, so soon as he should be prepared to deceive it, a legacy of four thousand dollars, bequeathed to him in trust and special confidence by the testator..” ■ Whether the estate of Campbell in the hands of the appellant, is responsible for the interest now claimed, we think must very much depend upon what would be the appropriate answer to an inquiry, whether, under the circumstances disclosed in the record, Judge Pqrviance.was excluded from the right of demanding interest upon his legacy. The petition states that, in June 1840, Samuel Neilson departed this life, having first made his last will and testament in due form of law, whereby he appointed Bernard IT. Camp — 357 — bell his executor; that the will was duly admitted to probate, and letters testamentary were granted to the said Campbell; who settled in the same court in which this petition was filed, four accounts as said executor; the first on the 2nd of October 1841, the second on the 9th of November 1841, the third on the 28th of October 1846, and the fourth on the 19th of December 1846; that Campbell died in April 1855, leaving a will appointing his wife executrix, who renounced; and Robert Mickle was duly appointed his administrator with the will annexed; that the petitioner was appointed and qualified as administrator de bonis non of Neilson; and that Campbell died without having made a final settlement as said executor, leaving a large balance of the estate in his hands. The petition refers to the will of Neilson, and says, “that amongst other bequests, the said Samuel Neilson did bequeath to the honorable John Purviance, his executors and administrators, the sum of four thousand dollars in trust, and special confidence however to be distributed and paid in such amounts, and to such persons as Richard Lemmon should direct and name, in accordance with the instructions given to him, and who would explain the reasons for making the bequest.” It is also alleged by the petitioner, that he is “informed and believes, that as soon as this bequest was called to the attention of the said John Purviance, he unconditionally renounced and refused the same, and that the said Richard Lemmon, always refused to give any directions for the payment and distribution of the said legacy, and that both the said Lemmon and the said Purviance, have departed this life without leaving any directions in reference to said legacy. ” The petition then states, “that by the second account of said B. U. Campbell as executor of said Neilson, he retained to meet said legacy, when the said Purviance should be ready to receive the same, certain stocks of the appraised value of $3608.50, and the sum of $1626.14 in cash. By the third account, settled on the 28th of October 1846, he retained the same stocks and $2754.43 in cash, to meet said legacy, charging himself with interest on the cash balance of $1626.14, previously retained, from the date of the second to the date of the third account, being five — 358 — years, and by his fourth account settled on the I9th of December 1840, he retained the same stocks, and $2631.03 in cash, to meet the said legacy.” The petitionor charges, “that the said Bernard U. Campbell, during his life time neither invested the said cash balance, nor as your petitioner believes, kept the same as executor, in any bank or place of deposit separate and apart from his own funds; but that he mingled the same with his own moneys, and as this petitioner believes used the same as if it were his own.” And the prayer of the petition asks, that the present appellee may be required “to answer all the matters and things set forth in this petition, and particularly to disclose when and in what manner the said John Purviance'renounced the said legacy, whether in writing or otherwise, whether the books and papers of said Campbell, show that he kept the said cash balance separate and apart from his own moneys or otherwise.” And the - prayer further asks, that the said Mickle may be required “to settle a final account of the estate of the said Neil-son, from the books and papers of said Campbell.” In the previous part of the petition, the petitioner had .claimed the right “to call upon Mickle, from the books and papers in his possession, to settle the account of said Campbell as executor of said Neilson, and to hand over to him (the petitioner) the balance found to be due, if the estate of the said Campbell be sufficient to pay the same.” The petition and the answer are under oath. The answer admits the statements contained in the petition in regard to the decease of Neilson, his having left a will appointing Campbell his executor, to whom letters testamentary were regularly granted. That Campbell died, leaving a will naming his wife as executrix, who renounced, and letters of administration with the will annexed were granted to the respondent; that upon the decease of Campbell, letters of administration de bonis non on the estate of Neilson were granted to the petitioner. And the answer says, “This respondent admits, that the said Campbell stated and passed four accounts as executor as aforesaid, which are now of record in this court.” It is also said in the answer, “this respondent admits that (he — 359 — said Bernard C. Campbell departed this life without having fully settled and closed up his said trust, as executor of the will of said Neilson; and this respondent, from the books and papers of said Campbell, hath stated the account herewith filed marked B. U. C., which he prays may be taken and considered as a part of this his answer. And this respondent admits, that the said Campbell did retain in his hands stocks and money to a considerable amount, as will appear by the accounts already passed in this court, and that herewith filed, to pay the legacy of four thousand dollars to the late Judge Purviance as mentioned in said Neilson’s will, and for greater certainty concerning said legacy, this respondent begs leave to refer to said will. And this respondent further answering says, that he is informed and believes that, the said Campbell, in his lifetime and on several occasions offered to pay said legacy to the said Judge John Purviance, but that the said Purviance declined then to receive it, but would not renounce it, and would not put in writing any thing to indicate his refusal to accept or renounce or release said legacy.” The answer admits the decease of Judge Purviance and Richard .Lemmon. The respondent says, “that he does not find from the books of said Campbell, that he either invested the said cash balance or kept the same as executor in any bank or place of deposit, separate and apart from his own funds, or what lie did with it, and he has no personal knowledge on the subject; but this respondent avers that the said Campbell, was at all times ready and willing to pay said moneys to whomsoever might be entitled thereto.” And the respondent “denies that said Campbell, was in default in relation to said legacy.” The answer also says, the respondent “has offered to pay and deliver over to said Cross, the stocks and moneys in his hands, belonging to said Neilson’s estate as shown by the account herewith filed, but said Cross hath refused to accept the same.” The petition was filed on the 10th of June 1856, and the answer came in the same day. The account on the estate of Neilson, mentioned in the answer, as having been stated by — 360 — the respondent, it seems was passed by the orphan’s court the day it was filed with the answer. The record states that the petitioner, by his attorney, “exhibits and files in court here, a copy of the last will and testament of Samuel Neilson deceased. ’ ’ And after giving the copy, the record, then says that the petitioner, by his attorney, “exhibits and files in court here, copies of Samuel Neilson’s 1st, 2nd, 3rd and 4th administration accounts, which said copies are in the words and figures following,” &c. This will and these accounts, it will be recollected, are mentioned in the petition and referred to therein; and instead of being disputed, contradicted, or denied, in any respect by the respondent, his answer admits them, and refers to them as matters of record in the court in which the cause was pending. There is ho proof of any kind dehors those instruments, and when considering what should be the effect of an answer in such a case, we think the same rule should prevail which is applicable when a cause is heard upon bill, answer and exhibits, in a court of equity. This being so, the present answer-must be held as true in regard to what is stated therein, unless in conflict with what is to be found in the instruments referred to by it, and admitted as true. Although this is the answer of an administrator, the principle applied to it is not in conflict with the decision in Pennington, Adm’r of Patterson, vs. Gittings’ Exc’r, 2 Gill & Johnson, 215. There the cause was not heard on bill, answer and exhibits, but a replication had been filed and proof taken. The case of Warren vs. Twilley, Ante, 39, shows, that notwithstanding the. act of 1852, ch. 133, when a cause is heard on bill, answer and exhibits, the answer is admitted to be true, although it may not have been called for under oath, nor read at the hearing, as evidence, by the complainant. There is nothing in this case, showing any deficiency of Neilson’s estate to pay debts and legacies. Nor is it denied that when the debts were paid, Judge Purviance had a right to receive' his legacy of $4000, provided he had not renounced it. If therefore the principal sum alone, had been actually — 361 — paid to the legatee, the representatives of the estate of Neilson, would have had no cause of complaint. But it is shown by the answer, that instead of an actual payment., the legacy was tendered on several occasions, and Judge Purviance declined to receive it; neither would he renounce it, nor put in writing any thing to indicate his refusal to accept, or renounce, or release the same. The executor therefore retained Stocks and cash to enable him to pay the legacy, “so soon as the legatee should be prepared to receive it.” And this retention appears in the administration accounts passed by the orphans court. With regard to retaining money by an administrator, under the direction of the orphans court, see 4 G. J., 462. The cash retained did not amount to $4000, and although the cash and stocks together exceeded that sum, it is shown that all the dividends upon the stocks have been fully accounted For, so that the claim at present is based alone upon the loss of interest on the cash. Now, if such a claim would be without foundation, provided an actual payment had been made to the legatee, why should not retaining the money for the purpose of paying him have a similar effect, if the sum retained did not exceed the principal of the legacy? The estate of the testator would be reduced no more in one event than in the other. Judge Purviance having on several occasions refused to accept payment when offered, and there being no evidence of his having made a subsequent demand, or of having indicated his readiness to receive the money, he could have no claim for interest; especially when the answer avers a readiness and willingness at all times, on the part of the executor, to pay. And by retaining the money to pay the legacy in such a case, Campbell’s estate is not responsible for the claim now insisted upon. The proof is not sufficient to show that, the money, retained in his hands, was so used by him as to produce interest. during the time for which it is claimed. He was in no default for not paying the legacy; and having on several occasions offered payment, and being at all times ready and willing to pay whenever the party entitled to the money should be prepared to receive it, his conduct protected the estate of — 362 — Neilson from any legitimate demand for interest upon the legacy. There is, therefore, no propriety in charging such an executor with interest, upon the presumption, that he made it merely because the money was in his hands; when it is shown that, with the approbation of the orphans court, he held the money for the purpose of paying a claim actually due, and which might be demanded at any time; thereby creating a necessity for him to be always ready and willing to pay, which he was, as alleged in the answer. In Gwynn vs. Dorsey, Adm'r of Howard, 4 G. & J., 460, itis said: “Whenever an administrator manifestly intends fairly to do his duty, the rule should be not to hold him liable upon slight grounds.” This principle is adopted in Chase vs. Lockerman, 11 G. & J., 207, where the court were considering how far executors were responsible for interest upon money in their hands. And in the latter case the former is referred to, as holding that, an administrator may be compelled to pay interest upon money kept in his hands without apparent reason, from the end of thirteen months after the date of his letters, but as likewise holding, at the same time, that he is only to be charged with interest, where in so doing, it also appears that he is guilty of a culpable inattention to his duty. And in Chase vs. Lockerman, the court quote, Wms. on Ex'crs, 1132, as saying: “There are two grounds on which an executor or administrator may be charged with interest: 1st. That he has been guilty of negligence in omitting to lay out the money for the benefit of the estate. 2nd. That he himself has made use of the money to his own profit and advantage, or has committed some other misfeasance. With respect to neglect on the part of the executors, in not laying out balances, it must be observed, that it frequently may be necessary and justifiable, for an executor to keep large sums in his hands, to answer the exigency of the testator’s affairs, especially in the course of the first year after the decease of the testator, in which case such necessity is so fully acknowledged, that according to the ordinary course of the court, the fund is not considered distributable until after that time. But if the court observes that an executor keeps money dead in his hands; — 363 — without any apparent reason or necessity, then it becomes negligence, and a breach of trust, and the court will charge the executor with interest.” From these authorities it will be seen, that an executor may be responsible for interest on money kept, in his possession, although producing no interest, when there is no apparent reason or necessity for his doing so. And this being true, we conceive it to be equally true, that where there is an apparent reason or necessity for retaining the money, the executor is not liable for interest, unless it can he shown that he has received interest, or has made use of the money for his own profit or advantage. We think there was reason for the retention by Campbell; and that the circumstances do not justify holding his estate responsible for the interest now' claimed. On the 11th of July 1856, the orphans court passed the decree from which this appeal is taken. In that decree the present appellant is required to settle a further account upon the estate of Campbell, and in stating such account the register is directed to charge that estate with interest,, on the sum of $2631, from the 19th of December 1846 to April 185,5, the period of Campbell’s death. We consider the charge of interest erroneous, and therefore the decree will be reversed, but the cause will not be remanded, as the agreement renders it unnecessary. Each estate must pay its own costs. ' Decree reversed.