Renwick v. Smith

The opinion of the court wag delivered by Willard, C. J. This action is by the personal representatives of a devisee under the will of John Rogers, for an account against the administrators of W. W. Renwiek and C. S. Beard, who took out letters of administration oum testamento annexo on the estate of the testator, John Rogers, the executor named in his will having renounced the executorship, and against the administrator of James Rogers. The first question to be considered is whether the demand is barred by the statute of limitations. The Circuit decree holds that the plaintiff, James E. Renwiek, is hot barred, but that the plaintiff, J. R. Renwiek, was so barred. The plaintiff, J. R., excepts to this decision, and the defendants to that holding that ■J. E. is not barred. The question is whether there was such a termination of the office and duty of the administrators that the plaintiffs were bound to bring action within the time limited by the statute after such termination. The only evidence of such a fact is the circumstance that an account was. presented to the Ordinary, intended, no doubt, as a full and final account, to which is appended the following note: “ Court or ORDINARY, 18th August, 1851. “Personally appeared before me W. W. Renwiek, administrator of John Renwiek, with the will annexed, who proves •their return by his own oath, but produces no vouchers. “ B. JOHNSTON, O. U. D.” It does not appear that the plaintiffs were cited to an accounting, or that they had notice of the filing of the account, nor that the administrators cum testamento annexo ever filed their vouchers, -or that the Ordinary passed upon the accounts or made any decree in the matter. It is clear that this was not a final discharge ■of the duties incident to administration. It was part of the duty — 304 — of the administrators to account for the estate of their testator that came to their hands. Filing an account is not in itself a compliance with the whole of this duty. It is at most furnishing the basis of the accounting, the object of the accounting being to verify or falsify its statements. To make that accounting final, it was necessary that the parties entitled to question the account filed should have an opportunity afforded them, by proper notice, to exercise that right, and that final action should be taken on the account by the Ordinary. This was not done; .and the administrators cum testamento annexo, as represented by their administrators, must be considered as not having discharged themselves of the duty of accounting. Under this view, the statute of limitations cannot be regarded as having barred either of the plaintiffs, and the decree is, in that respect, erroneous. , The authorities bearing on the conclusions just presented will now be considered. Riddle v. Riddle, 5 Rich. Eq. 32. In this case, one of the questions was as to the commencement of the statute to run upon an administrator’s accounting. Chancellor Dunkin says : “ If an ex parte return to the Ordinary, in which an executor or administrator strikes a balance against the estate, should be regarded as a discharge of his trust, from which the-statute would run, as against a bill to account, it would be an alarming disclosure, as well to creditors as to legatees and distributees of the deceased.” It was held that the trust continuing, the statute was not a bar. Miller v. Alexander, 1 Hill Ch. 25. In this case it was held that even a decree of the Ordinary, taken ex parte, was not binding on the parties as an estoppel; that, to make it binding as an estoppel, it should appear that there was a proceeding either upon citation or the voluntary submission of the parties sought to be bound thereby. The result of this decision is to hold that the duty of accounting was not fully performed, even where there had been an actual accounting, and a decree based upon it, as affecting parties entitled to notice of such accounting, and who had not received such notice, or expressly waived their rights. That duty being still obligatory, administration was still existing, and the statute did. not rim. Long v. Cason, 4 Rich. Eq. 60. In this case the authority of Miller v. Alexander was recognized, but the question of the — 305 — statute of limitations then raised depended on the fact that the guardian had been removed and a new guardian appointed, so that the statute commenced to run in favor of the guardian removed, and against the new guardian at the time of removal. It was held that this was such a termination of the trust that the statute bad then commenced to run. Crosby v. Crosby, 1 S. C. 337. The decision in this case is entirely consistent with the foregoing, although the question of the statute of limitations went off on the ground that the administrator, being also guardian of the infant plaintiff, he could not take advantage of the statute, when, in his character of guardian, he was chargeable with whatever delay had occurred. The currency of-the statute does not necessarily depend upon the fact of a full and final discharge of the duty of the administration. It commences to 'run when it appears that the administration has done some act, brought to the notice of the parties affected by it, equivalent to an abandonment of such office, although such act may be in itself wrongful. But the case before us presents no such state of things. The only question • raised is whether the office and duty of the administrator ceased by a full discharge of all its duties at a certain time, and that question has already been disposed of. The next question is, what estate did Bosannah P. Benwiek take under the will of John Bogers ? The question, as presented to us, assumes that the entire distributable estate is to be regarded as personalty, and the will will be considered in its bearing on personal property alone. The third paragraph of the will is a gift of personalty and realty to Bosannah P. Benwiek “ and her children.” She had no child born alive prior to the death of the testator. The bequest imports an immediate gift to children, and as there was no child to take as purchaser at the death of the testator, children born after that event could only take by descent, as issue. Hence, as it regards realty, the devise imported a fee conditional. As it regards personalty, the condition attached to the fee, viz*, that the estate should descend to the issue of the first taker, per formara doni, was impossible, as the law did not permit such a descent in the case of personalty, and as the condition was a condition subsequent, following the ordinary rule — 306 — as to conditions subsequent,'the fee, unburdened of tbe condition, remained absolute. This would give Rosannah P. an absolute estate in the personalty. The foundation of the conclusion just stated is in the first resolution in Wild’s case. 6 Colce’s R. 17. The doctrine has been uniformly applied in this state. It will only be necessary to cite Shearman v. Angel, Bail. Eq. 351, and Henry v. Archer, Id. 535, with the observation that the exposition of the doctrine of the last-named case that appears in Hay v. Hay, 4 Rich. Eq. 384, is essential to a correct understanding of the true result of that case. Under the third paragraph standing alone there is no limitation over on the failure of issue, and. therefore no mode of referring to the intricacies that are found in the cases growing out of the different views that have been taken of the effect of a limitation over both, upon the character of the first estate and the sense of the terms by which it is created. But it is contended that the- last portion of the third paragraph be read as follows: “ And at that time/’ meaning the death of the testator, “she and her children are to receive an equal part,” &c. The proposition is that the words “and her children” should be interpolated after the word “she” as the words stand in the will, so as to read in the manner just recited. It is obvious that such an interpolation would not help the sense of that paragraph. The testator must be regarded as using these words immediately prior to his death, and as at that time there was no child of Rosannah in esse, and as he must be regarded as intending an immediate devise at his death to children, such disposition could not take effect except by taking children to mean issue, who could take by descent. It will not be necessary to follow the elaborate argument of counsel upon the grounds for correcting the expressions of a will by the underlying intent gathered from other parts of the will. But it will not be amiss to remark that much of the uncertainty that exists as to the application of the various authorities on the subject arises from overlooking the fact that the rules of interpreting technical words, used in a will, have been applied to phrases and connected expressions as importing some known mode of disposition. Technical words, even when employed in a will, are to be taken in the technical sense as their primary sense, and such sense must — 307 — be corrected, if at all, by finding the testator’s glossary or controlling intention in the context. Certain forms of expression employed by testators have been placed upon the same ground as technical words in this respect, and in their primary sense, considered as formula, must be taken to have the meaning imputed to them by the adjudicated cases, and the correction of the apparent sense must be reached under the rules applicable to technical words already referred to. It is also contended that certain words employed in the fifth paragraph of the will are to be read as qualifying the gift in the third paragraph, by limiting over the estate there given upon the condition of Rosannah dying without leaving children. The portion of the fifth paragraph in question reads as follows:. “The rest and residue of my other property to be sold and divided in four equal parts among my aforesaid children; and if any of my daughters should die without leaving children, their property, hereby given to be divided into four equal parts,” etc. The will thus disposes of these parts. In the first place this purports to be a residuary clause, and the words “ hereby given ” must be regarded, in the first instance, as referring to that property which is directly disposed of under the residuary clause. That property is characterized by the word “ other,” which, when used in a residuary clause, naturally excludes all property the subject of prior express devises in the preceding parts of the will. Grammatical considerations must be of undoubted actual force to undo this sense; if at best they are conjectural, the primary sense of the terms remains. It will not be necessary to consider how the clause may be affected by its grammatical relation to its immediate antecedent as a conclusive argument, for allowing “ other ” to have its ordinary force is found in the character of the express dispositions. If the devises that precede the residuary clause are carefully examined, it will be found that they leave undisposed of an undivided one-fourth part of the entire estate, real and personal, after deducting specific devises and bequests, and to this undisposed-of interest the residuary clause must be regarded as ■intended to be applied. This construction finds a necessary office for such a residuary clause as this purports on its face to be, and thus affords the highest ground for the construction — 308 — already represented. It must bes concluded that the limitation over contained in the fifth paragraph is inapplicable to the bequest-contained in the third paragraph. The remaining question arises upon the facts that the husband of Eosannah P. administered with the will annexed on the estate-of the testator and converted the estate into cash, and that during his administration and during the life of his wife, he wasted the assets of the estate, and finally that he survived his wife. This fact of wasting the assets is set up in the seventh cause of the complaint, and its force is not destroyed by anything that is presented in the case. The plaintiffs can only claim as the distributees of their mother, as it regards the property of which she took an absolute estate, as already determined. Claiming through their mother, they can only claim what she could have claimed had she survived her husband. She could not have claimed compensation out of her husband’s estate at large on the ground that he had wasted assets appertaining, to her personal estate,, which he had the right to reduce to possession. Spann v. Stewart, 1 Hill Ch. 326; Wardlaw v. Gray, 2 Hill Ch. 644. The cases in this state all hold that the right of a distributee, as against the administrator upon whom the title to the personalty devolves by law, is a mere chose in action, until perfected through the act of the administrator. Spann v. Stewart, supra; Sturgineger v. Hannah, 2 N. & McC. 147. The same rule is applied to a legatee and the executor, the legatee having a mere chose in action until assent to the legacy by the executor. Cannon v. Ulmer, Bail. Eq. 204. As such, there must be a reduction to possession under the marital rights before such chose passes out of the estate of the wife. Where the husband, as administrator or executor, gets possession of the estate out of which his wife is entitled, as distributee or legatee, there is no reduction to possession as long as that estate remains specifically in the hands of such executor or administrator, or in some form in which it can be identified as appertaining to the decedent’s estate, and neither the payment of debts, nor assent, distribution or partition has been made. But no case holds that after the decedent’s estate has gone out of the possession of the executor, either the wife or her representatives can hold the estate of her deceased husband — 309 — amenable to make good" her interest in assets wasted, while the ¡authority of the cases already cited for the purpose is directly to ¡the contrary. It would be manifestly inconsistent to allege at •the same time that the husband had not reduced her choses to possession, and that he had appropriated and wasted them. It is clear that the plaintiffs are not entitled to an account for •any portion of the estate derived from their mother, through the third paragraph .of the will. The decree mugt be reversed and the cause remanded to the 'Circuit Court for proceedings conformable herewith. Decree reversed. McIver and Haskell, A. J.’s, concurred.