Buerhaus v. DeSaussure

The opinion of the court was delivered by Mr. Ghiee Justice McIyer. In view of the fact that, the [488] reports of the master, and the decree of the Circuit Judge, which should be incorporated in the report of this case, will furnish a sufficient statement of the facts of this somewhat complicated case, to enable us to determine the many questions raised by these appeals, we will not undertake to make any such statement here, but will content ourselves with a bare outline of the uncontested facts of the case, which will be sufficient to afford a general idea of the nature and objects of the action, the decree in which we are called upon to review. The testator, Etienne Poincignon, having duly made and executed his last will and testament, departed this life some time in the year 1873. By his will the testator, after sundry devises and special legacies, gave all the residue of his estate to his nephew, Julius Trouche, and his nieces, Marie Louise Buerliaus, Julie Jugnot, Caroline McNulty, Elodie Downey, and Priscilla Duval, to be divided equally between them, and appointed as his executors W. G. DeSaussure, Julius Trouche, F. T. Dowuey, and Lawrence Duval. The will was duly admitted to probate on the 15th of July, 1873, and on the same day all the persons uamed as executors duly qualified as such. On the 25th of November, 1874, the executors, having paid all the debts of the testator and the special legacies, and having made provision for the life estates and annuities created by the will, filed their account or return with the Judge of Probate, which was duly allowed as properly vouched, which account showed a balance against the executors of $5,299.31. From that time forward no other account or return was filed by the executors, or either of them. The several executors have all died, one after the other, as follows: Trouche in 1877, Duval in 1878, Downey in 1883, and DeSaussure in February, 1886. In January, 1888, the present action was commenced by Marie L. Buerhaus, who had taken out letters of administration de bonis non, with the will annexed, upon the estate of the testator, Poincignon, for the purpose of obtaining from the defendant, Martha G. DeSaussure, as executrix of the last will and testament of W. G. DeSaussure, the last surviving executor of Poincignon, an account of the assets of the estate of the said Poincignon, which came into his hands as executor as afore [489] said; and that such of the residuary legatees as are now living, and the personal representatives of those who are dead, may account for the amounts received by them on account of their respective shares of the residue of the estate of the original testator, Poincignon, for which purpose they have been made parties defendant to the action. These parties all answered, concurring practically in the prayer of the complaint. All persons interested being before the court, an order was passed referring it to Master Sass, to hear and determine all the issues made by the pleadings, with leave to report any special matter. Master Sass held numerous references and took a mass of testimony set out in the “Case,” and submitted his report, accompanied by exhibits, showing the state of the accounts, and the same, together with the exceptions thereto, came before his honor, Judge Hudson, who rendered his decree, differing widely from the master in many of the conclusions reached by him. And the case has been brought here upon exceptions to Judge Hudson’s decree, filed by the defendant, Martha G. DeSaussure, as executrix of W. G. DeSaussure, and as administratrix de bonis non, with the will annexed, of Julius Trouche; by G. M. Trenholm, as administrator de bonis non, with the will annexed, of Blodie C. Downey, and by Julie Jugnot, who was originally represented by the attorneys for the plaintiff, but who, when in the progress of the references it was found that her interests might conflict with those of the plaintiff, was subsequently represented by Mr. Northrop. It will not be necessary to set out these exceptions here, as they should be incorporated in the report of the case. Nor do we think it necessary, or even advisable, to consider the several exceptions seriatim; and we propose, therefore, to group the several exceptions into classes, as suggested by the subjects to which they relate. 1 We will first direct our attention to the exceptions filed by Mrs. Martha G. DeSaussure. The first and second exceptions attack the view taken by the Circuit Judge as to the scope and object of the action. It seems to us that the manifest purpose of this action was to ascertain what now con [490] s ti tutes the residuary estate of the testator, Etienne Poincignon, which the plaintiff had undertaken to administer, and to effect this purpose it, of course, would be necessary to have an accounting from those originally entrusted with its administration, as well as an accounting from those entitled to share therein, of the amounts severally received by them respectively. To obtain such accounting was the aid of the court invoked, in order to enable the present representative of the residuary estate to ascertain what was due to each of those interested therein. It is not an action to marshal assets, or to enjoin creditors, or to sell realty in aid of personalty for the payment of debts, nor is the court asked to administer the fund under its direction by the proper officer for that purpose. The practice prescribed in the case of Thomson v. Palmer, 2 Rich. Eq., 32, has no application to a case like this. We agree, therefore, in the view taken by the Circuit Judge, and these exceptions must be overruled. 2 The third, seventh, and thirty-first exceptions relate to the mode of dealing with the amounts received by the several residuary legatees on account of their shares of the residue; and as these amounts were received at different times and in unequal sums, the main inquiry is, whether interest should be charged on the several amounts from the time when they were received. Inasmuch as it seems to be conceded that all the debts of the testator, as well as all special pecuniary legacies, had been paid before the account or return made by the executors on the 25th of November, 1874, was passed by the judge of probate, nothing remained in their hands except the residue, of which sum, except so much thereof as was necessary to provide for the life estates and the annuitants, each of the six residuary legatees was then entitled to demaud and receive from the executors an equal share; for, of course, the sum appropriated to the life estates, and the raising the annuities, could not be divided amongst the residuary legatees until the life estates fell in and the annuities terminated. If, therefore, one or more of the residuary legatees received from the executors a sum or sums of money differing in amounts, and received at different times, not exceeding in the whole the share of the [491] fund then subject to division, they received their own money, and, of course, are not chargeable with interest thereon. The apparent inequality resulting from this, whereby some of the residuary legatees have enjoyed the use of the whole or portions of their shares for a longer period than others, is not due to any fault of those who received their shares, or portions thereof, in advance of the others, and is no invasion of the rights of such others; for when the fund became subject to division, each one of the residuary legatees, who were then all sui juris, as the Circuit Judge finds, had aright to demand and receive their full shares, and if some received more than others it was not their fault, but rather the fault, or at least the misfortune, of the others, which was in no wise attributable to those who had received more. If, however, any one or more of the residuary legatees has received more than his or her equal share of the funds for division, then to the extent of such excess such legatee has received money not belonging to him or her, as the case may be, and is bound to refund the same, with interest, to the executors or persons representing them; or, in this case, where all the parties are before the court, to those who have been underpaid, in order to avoid circuity of action. Inasmuch, however, as under the view which we shall take of other exceptions, it is altogether improbable that any of the residuary legatees will be found to have been overpaid, we need not dwell further upon this subject. These exceptions to the extent only as indicated above should be sustained, and the Circuit decree be modified accordingly. 3 The fourth exception requires no consideration, for, as we understand it, the matter therein inferred to has been referred back to the master for further investigation. 4 The fifth, fourteenth, fifteenth, seventeenth, and twentieth exceptions raise questions of fact, and, under the well settled rule, the conclusions reached by the Circuit Judge will not be disturbed, unless without any evidence to sustain them, or manifestly against the weight of the evidence, neither of which can propexly be said in this instance. These exceptions are, therefore, overruled. [491] The sixth exception questions the ruling of the Circuit [492] Judge as to the proper method of vouching the account, and his omission to notice the fact that vouchers were offered for every item in the account. It does appear, at folio 314 of the “Case,” that vouchers were offered, for at that point we find the following statement of what occurred at a reference held on 5th March, 1891: “The accounts of the executors of Poincignon before the Probate Court, as vouched before that court 25th November, 1874, are regarded as vouched in the master’s office. Account from that date was taken up and vouchers were offered. The account was marked in evidence and submitted to counsel for examination.” And further on in the “Case” it appears that after the account had been examined, counsel for parties demanding the account stated various objections to the account as presented, and these objections were considered in detail and passed upon by the master. It does not appear that the plaintiff ever demanded the production of a voucher for each item of the account; but, on the contrary, as we have seen, the vouchers were offered. It is true, that the present plaintiff, in her sixth exception to the master’s report, does complain of the ruling of the master, that, as Mrs. DeSaussure filed a verified account, she was only required to prove those items of the account to which specific objection was made, and it was in passing upon that exception that the Circuit Judge made the ruling complained of in the sixth exception to his decree. It seems to us that the ruling of the Circuit Judge as to the proper mode of vouching the account of an executor is correct, aud is fully sustained by the case of Black v. Blakeley, 2 McCord Ch., 1, cited by him, as well as by the case of Wright v. Wright, 2 McCord Ch., 185. Indeed, we think that the case of Duncan v. Tobin, Cheves Eq., 143, relied on by the master, when properly understood, also supports the ruling of the Circuit Judge. Even in the passage quoted by the master from that case, it appears, clearly, that the production of a verified account by the accounting party does not dispense with the necessity for the production of vouchers to establish the disbursements claimed to have been made, as is shown by the concluding words of the passage quoted: “when that is [493] done [that is, when the amount with which the accounting party should be charged is ascertained in the mode prescribed], either by admission or proof, the accounting party must discharge himself by the production of receipts or other competent evidence.” This is made still more apparent by the language used by Johnson, Ch., in another part of the same opinion, where, in speaking of the returns made by the executor to the ordinary, he says: “They arejprima facie evidence as to the receipts, for he can produce no other than that furnished by the inventory, the bill of sales, and the amount of moneys received, which the opposite party would, of course, be entitled to surcharge and falsify. But not so with regard to the disbursements; that is susceptible of other proof, and must be established and vouched according to the general rules of evidence.” The misconception arises from confounding the two sides of the account. When an executor files a verified account, based upon his returns to the proper officer, in which he charges himself with the amount of the sale bill, for example, and with money collected on the choses in action belonging to his testator, that side of the account is to be taken as prima fade correct, subject, however, to attack by the party demanding the account, as incomplete or incorrect in certain specified particulars; but when he makes up the other side of the account, showing his disbursements, he must vouch each item by the production of receipts or other competent evidence of such disbursements. We agree, therefore, with the Circuit Judge in the view which he has taken; and we further agree with him that, after such a lapse of time, every reasonable indulgence should be extended to Mrs. DeSaussure in taking the account. See Lewis v. Price, 3 Rich. Eq., 172. The sixth exception must, therefore, be overruled. 6 The eighth, ninth, and tenth exceptions allege error in the Circuit Judge in holding the executors liable for the losses sustained by the compromise of certain bonds found by them amongst the assets left by the testator. It seems to us that the evidence sustains the Circuit Judge in holding that these bonds could all have been collected if the [494] executors had used the most ordinary diligence. The undisputed fact is that, so far, at least, as the larger portions of these bonds, designated in the case as the bishop bonds, are concerned, the executors held them for a period of about seveu years, without collecting, or attempting to collect, any interest thereon, whereby the amount due thereon, at the time of the compromise, had been increased to a very large amount by the accumulation of interest; and then, at the instance of the executors themselves, and not at the instance of the debtors, the bonds were compromised at less than fifty cents on the dollar, thereby entailing a very heavy loss upon the estate of the testator. These bonds were secured by mortgages of real estate estimated by those supposed to be competent to make such estimates to be worth an amount sufficient to pay these bonds in full, even with the large accumulations of interest thereon. We look in vain for any testimony even tending to show that these compromises were wise or prudent business transactions, entered into with a view to protect the interests of the.estate; and, on the contrary, all the testimony forces the conclusion that they were nothing but voluntary surrenders to the debtor, the Roman Catholic Church, of more than half of well secured debts. Such a transaction, however commendable in one dealing with his own property, can never receive the sanction of a Court of Equity when entered into by one entrusted with the protection and preservation of the property of others. • It is sought, however, to sustain these compromises by the large discretion conferred upon the executors by the terms of the will of their testator. The clause relied upon for this purpose reads as follows: “And I also empower them to compound for, compromise, and settle such debts as are due to me, upon the terms which, in their judgment, may be best for the interest of my estate.” It is contended that this language conferred upon the executors unlimited discretion in the compromise of debts due to their testator, and that the exercise of such discretion is beyond the control of a Court of Equity, and the case of Fronty v. Godard, Bail. Eq., 509, is cited to sustain that view. In that case the testator gave all of his property in Charleston [495] to his wife for life, with remainder over to others, adding these words: “But I do, nevertheless, empower my said wife, by her last will and testament, or other instrument signifying her intention, to make some provision or portion to our orphan child, Augustine Matilda Emma Barton, whom I recommend to her good and generous heart.” The wife, by her will, executed the power, by appointing to the daughter about two-thirds of the Charleston property, and one of the questions in the case was, whether the appointment was excessive. In delivering the opinion of the court, O’Neall, J., after quoting the language above set out, used this language: “The true question on this clause is, has the testator left the nature and amount of the provision to the discretion of his wife? If he has, then his confidence in her must be held to have authorized any disposition in favor of the complainant, be it much or little. For, after all that has been said and written on the subject of the execution of powers, the only principle which can be safely extracted from the cases is, that where a power of appointment is to be exercised according to the discretion of the person to whom it is committed, no appointment, however unjust or unreasonable it may seem, can be regarded as excessive; but where any limitation is placed to the exercise of his discretion, the courts will control the execution of the power.” This case also establishes the principle recognized in numerous other, cases, that in determining the extent of a power, the intention of the donor, in its creation, must constitute the guide. Looking at the present case in the light of these principles, the inquiries are: 1st. Whether the power conferred was unlimited, and if not, what is the limitation? 2d. What was the intention of the testator in creating the power? We think it clear that the power conferred was not an unlimited power to compromise any debt due to the testator, for the obvious reason that the testator has not said so, and the language which he used cannot be regarded as implying any such intention. On the contrary, the language used necessarily implies that he intended to invest his executors with power to compromise only such debts as in their judgment it might be best for the interests of his estate to compromise — that is to say, in order to [496] avoid the loss of the whole, or a greater part, the executors might safely compound for the less. The discretion or power was not, therefore, unlimited, but was restricted by a due regard for the interests of the estate committed to their charge; and, therefore, as laid down by O’Neall, J., supra, the court will control the exercise of the power. It cannot be said that the testator intended to invest his executors with the unlimited power to compromise any or all of the debts due him, and certainly did not intend that his executors should, under the guise of this power, practically donate to a debtor about one-half of a well secured debt. If such had been his intention, it would have been very easy and most natural for him to provide in his will for the release of one-half or the whole of the debt of the church to which he belonged. On the contrary, he seems to have collected regularly the interest on these church debts, up to about the time of his death. It is contended, however, that the simple fact that the executors made these compromises is sufficient to show that, in their judgment, it was best for the interests of the estate to compromise these debts, and that, in the absence of proof of fraud or bad faith, they must be sanctioned. We do not understand that any one imputes fraud or bad faith to these executors, or either of them, and we certainly make no such imputation. But assuming, as we readily do, that there was no fraud or bad faith, we cannot accept the view, that the mere fact that the compromises were made is sufficient to show that such compromises were, in the judgment of the executors, for the best interests of the estate, especially in the absence of any evidence tending to show that the interests of the estate were, in fact, promoted by such compromises, and in view of the fact that such evidence as has been introduced tends to show that the debts compromised were well secured by mortgages of real estate. Indeed, it seems to us, from a review of all the facts relating to this branch of the case, that the true view is, that the executors misconceived the scope and extent of the power conferred upon them, and supposing that they were invested with unlimited discretion, undertook to make these compromises rather than to enter into an unpleasant litigation with the church of which [497] their testator was a member, which would probably have resulted in a sale of portions of the church property, doubtless expecting that their action in the premises would be sanctioned and approved by those interested in the estate. We are of opinion, therefore, that these exceptions must be overruled. 7 The eleventh, twelfth, and thirtieth exceptions, practically, make the point that the residuary legatees there named are estopped by reason of the fact that F. T. Downey, one of the executors, was their trusted and confidential agent, and had full power to represent them in all matters pertaining to the settlement of the estate of Poincignon, and that the compromises made by him must be regarded as made by them. It does not seem to us that the evidence sustains the view that the judge should have found as therein claimed. Besides, it appears that when the compromise of the bishop bonds was consummated, Downey was in New York. The receipt is signed by Mr. DeSaussure alone, and in it he says: “Thebonds will be delivered upon the return of Florence T. Downey, one of the executors, in whose custody they are.” 8 The thirteenth exception, as to the item of $3,579.64 charged against Mrs. McNulty, seems to us to present a mere question of book-keeping; and as the account has to go back to the master, if there is any error in this charge it can then be rectified. 9 The sixteenth exception presents the question whether the executors should be allowed commissions on the whole amount of the price of the premises No. 285 King street, or only on the amount of the cash which passed through the hands of the executors. It seems that the executors sold this property to Mrs. McNulty, the price agreed upon being $16,000, but the property being, at the time, encumbered with a mortgage to secure a debt to a third person, amounting to something over $9,000, the arrangement was that Mrs. Mc-Nulty should satisfy this mortgage, which she did, and pay the balance of the purchase mouey, amounting to over $6,000, to the executors. This sum, therefore, was the only amount that passed through the bauds of the executors, and upon that sum [498] alone are the executors entitled to commissions. This exception is consequently overruled. 10 The eighteenth and nineteenth exceptions are sustained. If Mrs. McNulty received $3,000 of State bonds, with unpaid coupons attached, amounting to $405, as the master finds and the evidence seems to show, we see no reason why she should not be charged and the executors credited with the amount of such coupons. 11 The twenty-first exception must be overruled. The evidence certainly shows that Julius Trouche did take a part in the management of the estate during his life, and, of course, he would be responsible for any devastavit committed before his death. 12 The twenty-second exception must be sustained. The simple fact that the executors had in their possession real estate of the testator, is not of itself sufficient to render the executors liable for the rents thereof, without some evidence tending to show that they might have let the premises and negligently failed to do so. 13 The twenty-third exception imputes error to the Circuit Judge in holding that the accounts should be stated with annual rests. This is clearly the general rule, provided care be taken to prevent compounding the interest where the payments in a given year do not amount to as much as the interest on the previous year’s balance, which can be easily done by keeping a separate interest account, by carrying the interest forward in a separate column. With this explanation, this exception is overruled. 14 The twenty-fourth exception complains of the charge of six months interest on certain city bonds, due 1st January, 1881, which bonds were soon after sold by the executors. In the absence of any evidence teuding to show that the bonds were sold with overdue coupons attached, we think the charge was correct, and the exception is overruled. 15 The twenty-fifth exception, besides being too general in its form, cannot be sustained by- the evidence, as devastavit was clearly proved. [498] The twenty-sixth exception cannot be sustained. In the [499] absence of any evidence that there are any outstanding debts due by the estate of Julius Trouche, and in view of the evidence that Trouche did act as executor up to the time of his death, during which period there was a devastavit, by failing and neglecting to collect the interest on the largest debts due the testator, whereby great loss ensued to the estate, it is clear that neither he, if living, nor his personal representative since his death, would be entitled to receive anything as residuary legatee until such loss has been made good to the estate. This, as we understand it, was the extent of the Circuit Judge’s ruling, and the exception is overruled. 17 18 The point raised by the twenty-seventh exception will probably lose any practical importance, inasmuch as it is highly probable, if not altogether certain, that when the account is reformed, as required by the decree in this cause, it will appear that none of the residuary legatees have been, in fact, overpaid; and hence it will be altogether a speculative inquiry as to whether there was any error in the mode adopted for ascertaining the amount of the alleged overpayment to Miss Jugnot. We may add, however, that we are not now prepared to admit that the funds set apart for the life estate of Mrs. Quinby, and to raise the annuity for Mrs. Chupeiu, should be taken into the account. These funds have never yet become subject to division amongst the residuary legatees, and it is possible that before the life estate and the annuity fall in, the funds set apart for this purpose may be wholly or partially lost, by some unforeseen cause for which neither the executors nor those who have succeeded to the management of the estate could be held responsible; in which event a serious question might arise as to whether these funds could properly be regarded as part of the residuary estate, subject to division amongst the residuary legatees. But we make no ruling now upon the subject, as we do not deem it necessary to do so. The twenty-eighth and twenty-ninth exceptions have been practically.disposed of by what has already been said. [500] 15 19 [499] Turning, then, to the exceptions filed by Mr. Trenholm, as administrator de bonis non, with the will annexed, of Mrs. [500] Downey, we find that the first exception is entirely too general to call for any consideration. All of the other exceptions have been practically disposed of by what we have said in considering the exceptions filed by Mrs. DeSaussnre; though we should add that the sixteenth exception, as printed in the record, is based upon a misconception of what the Circuit Judge did, in fact, hold. He did not hold that no refunding could be ordered from a legatee, “if there was an original deficiency of assets,” but just the contrary, as is recognized by the terms of the eighteenth exception. This apparent inconsistency is, doubtless, due to a misprint. 17 19 It remains only to dispose of the exceptions filed by Miss Jugnot. All of her exceptions, except the ninth, relate to the alleged overpayment to this lady, and to the mode of requiring her to refund, in ease she has been, in fact, overpaid. But as it is quite manifest that when- the account is reformed, as required by the decree, there will, in fact, be no overpayment to her, it would needlessly protract this opinion to consider these exceptions further than they have already been treated of. The ninth exception is in these words: “Because his honor erred in not holding that all proper parties are now before the court.” This is evidently a misconception of his honor’s decree, for, after stating the various changes occasioned by the death of some of the parties, and the appointment of personal representatives of such deceased parties, we find these words: “So that all persons interested in the final decree are now parties to the action.” This exception must, therefore, be overruled. The judgment of this court is, that the judgment of the Circuit Court, except as modified herein, be affirmed, and that the case be remanded to that court for the purpose of carrying out the views herein announced. 20 In this case, Mrs. DeSaussure, executrix, filed a petition for rehearing, upon the grounds that this court, in overruling her exceptions, numbered 5, 14, 15, 17, and 20, had overlooked the fact that the master had differed with the Circuit Judge as to all of these matters, and that this [501] court was in error in stating that the testator had regularly collected interest on the bishop bonds. On this petition, the Chief Justice and Mr. Justice Pope (Mr. Justice McGowan’s term of office having expired), endorsed an order, September 14, 1894, in the same words as in Anderson v. Pilgram, ante, 440.1 Footnotes [1] There are a few other cases of November term, 1893, that were not decided in time to appear in this volume. They will be found in vol. 42. — Reporter.