Gates v. Whetstone

The opinion of the Court was delivered by Weight, A. J. We have carefully examined “ the voluminous testimony ” submitted, and, looking at it in the different lights in which the respective counsel in the arguments have regarded it, do [246] not find much difficulty in attaining a conclusion on the facts entirely satisfactory to ourselves. The first ground of appeal on the part of W. C. Whetstone (one of the defendants below) submitted error in so much of the decree as finds that the cotton in the hands of the factors, from proceeds of which, on the 18th of February, 1866, a payment of fifteen hundred dollars (11,500) was made by them to J. J. Jackson, was a part of and belonged to the estate of the testator, C. A. Gates, “not being the profits accruing from such estate during the widowhood of Mrs. Barbara Gates,” with whom the said Jackson, in August, 1863, intermarried. While we agree with the Circuit Judge as to the right of property in the said cotton, we do not concur in the legal consequences which he deduces from it as affecting the payment of the said money to Jackson. We do not perceive upon what principle Whetstone, the executor, can be made liable for the receipt by the husband of the executrix of money found by the decree to belong to the estate which they both represented. • It is true that if an executor, of his own will, turns over to a co-executor a fund in his hands belonging to the estate of his testator, or by his act removes it from his own sole control and subjects it to the common control of himself and his co-executor, he will, in the language of O’Neall, J., in Administrators of Johnson vs. Johnson, (2 Hill Ch., 288,) “ be generally responsible for its administration.” The whole scope of the English and American authorities referred to in the opinion of the Court in that case and the decision itself extend the doctrine no farther. In this State the Courts have not held an executor liable for the acts of his co-executor to which he has not contributed in some direct and active way, so as by his interference to afford not only countenance but co-operation. Such will be found to be the result on an examination of all the cases where the point has been brought into discussion. In Lenoir vs. Baxter, (4 DeS., 65,) it was held “ that executors and administrators are not liable for each other’s acts unless there be connivance or gross negligence.” To the same effect is Knox vs. Picket, (ibid, 92.) In O’Neall vs. Herbert, (McM., Eq., 497,) Harper, Chancellor, delivering the opinion of the Court, said: “The general rule of this Court is, that one executor is not liable for the assets which come into the hands of his co-executor [247] unless under particular circumstances, such as having paid them over to him, having joined in a misapplication of them, or having joined in a receipt by which he enables him to receive them.” In Gayden vs. Gayden, (ib., 435,) the same principle was announced, and on the hearing of the appeal, after the case had been again tried on the circuit, the same Chancellor, pronouncing the opinion of the appellate Court, at page 144,said: “It is said in the former opinion of this Court thfit one administrator is not liable for the acts of another in which he did not concur. As this seems to have misled, and perhaps was calculated to mislead, the parties, we have thought it proper to give the subject a full and thorough examination. In many authorities, as well as in the case of O'Neall vs. Herbert, referred to, it is expressly held, both with regard to executors and administrators, that they are not liable for each other’s acts. Though at law both may be jointly liable on their bond) yet this Court discriminates and charges each with his own proper defaults.” In Atcherson vs. Robertson, (3 Rich. Eq.,) Chancellor Dunkin, delivering the opinion of the Court, at page 137, says: “If an executor, having received funds of the estate, pays or delivers them over to his co-executor, or joins in a misapplication of them, or joins in a receipt which enables his co-executor to receive them, he may be made responsible; but the general rule of the Court, as declared in O'Neall vs. Herbert, is' that one executor is not liable for the assets which come into the hands of his co-executor, and the same rule was applied to joint administrators in Gayden vs. Gayden. In Clark vs. Jenkins, (ibid, 341,) Chancellor Wardlaw, delivering the opinion of the Court, said:. “Every executor has a several right to receive the assets of the estate, and he who receives is exclusively answerable for the misapplication of them, unless his co-executors have contributed to enable him to get possession of them, or acquiesced in his-appropriation of them, contrary to the trusts of the will, knowing of such misapplication.” Whatever control the executrix acquired over the estate by virtue of her office vested in Jacksou on their intermarriage to the same extent as held by her. — 1 Williams on Executors, 788; 2 ibid, 827. When the cotton was in the hands of the factors, it was held by them “ to the credit of the estate of C. A. Gates.” Each of the executors had a right to draw against it, and an order for its pay [248] ment did not require the signature of both.—Gage vs. Administrators of Johnson, 1 McC., 492. The children were all minors, without guardians, and if Jackson .neglected any duty in relation to the money which he received, it was in not investing it in some good and valid security. He and Whetstone stand in the same relation to the money drawn by each from the factors of the cotton proceeds. Whetstone could have no more compelled him to pay to him whatever sum'he so received than he, Jackson, could have required Whetstone to account to him for the funds which he had drawn from the same source. No act of Whetstone is shown which contributed to the payment of the money to Jackson, and his mere passive course in withholding his interposition is not enough to render him responsible. In regard to the notes due the estate, and uncollected, there was no evidence to show that the parties were doubtful, much less insolvent, and the consequence of their loss must fall on the executor, who, having them in his hands, made no. endeavor to realize the amounts on them. We agree with the Circuit Judge in overruling the exception of the plaintiffs as to so much of the report of the Referee as recommends that the executor shall not be charged with the one hundred dollars ($100) in the account of 1867, the price of a horse then sold by him, for the reasons given by the Referee in his report. We do not see why the costs of the case should be thrown on the estate. Except as to those of Jackson and wife, which must be paid by them, they must be borne by the appellant, Whetstone. The case is remanded to the Circuit Court, with leave to the plaintiff, if they desire, to take an order against the said Jackson, for an account of the fifteen hundred dollars ($1,500) received by him from proceeds of the cotton, with interest, and for any other assets of the estate which may have come to his hands, and for any other orders necessary to give effect to the judgment of the said Court hereby and herein modified. Moses, C. J., and Willard, A. J., concurred.