Heirs of Wells v. Heirs of Cuny

Porter, J., delivered the opinion of the court. The ancestor of the defendants was appointed by the father of the plaintiffs jointly, with two other persons, executors of [492] his last will and testament, and tutor to his then minor chib dren. He assumed, in conformity to the appointment, both these offices, and continued in the discharge of the latter, until several of the plaintiffs came of age, but died before he rendered them an account of his administration. This action is brought to compel his heirs and one of the executors, to render an account. It is somewhat difficult to say, whether the suit against the defendant is for their ancestors’ administration as testamentary executor, or merely as tutor; but we conclude from the whole of it, that it embraced both. The proceedings against the co-executor, after he filed his answer, seem to have been suspended, and the cause was litigated between the parties before the court. The defendants, with their answer, filed several accounts; one, exhibiting payment and disbursements made generally, for the estate; and the others, showing the state of his account against each individual heir. The plaintiffs filed objections to those accounts; and, among other things, alleged that the defendants could not introduce into this action, the charges against the individual heir, the same having been brought to obtain a settlement of the general administration of the estate. The probate judge, however, in malting up his judgement, charged the plaintiffs jointly with all the moneys which had been paid by the defendants’ ancestor, either as executor or tutor, and crediting them with the amount which had come into his hands, in both capacities; gave judgement jointly against the plaintiffs, in pursuance of the defendant’s prayer in reconvention, for the balance which appeared to be due to them. The mixing up so great a variety of matters in this judgement, has produced such confusion in this case, that we have had difficulty in seeing our way through it. The judge of probates was probably misled by the looseness and general terms of the petition; but on a fair consideration of it, we do not think it authorized the inquiry he went into. The circumstance of all the heirs joining in the petition for an account, and that of their making another executor defen [493] dant; added to the allegations in the petition in respect to the administration, has produced on our minds the .just expressed. It is true, after alleging the neglect and responsibility of the executors, they add that the ancestor of the defendants continued to act as their curator and tutor; but the averments which follow this statement, show clearly that it was not for the administration of their particular property, but that of the estate generally, which they require him to account for; for they add, that in that capacity, “he continued to administer the estate, to receive the rents due the same, and collect debts, and that he departed this life without rendering a final account.” In a suit by the heirs to compel the ex ecutor of their ancestor’s estate to account both as executor and tutor to the minor heirs, or to compel the heirs and representatives of such executor and tutor to settle and render an account of his administration, the settlement of the individual accounts of each heir with his tutor is improperly admitted by the Court of Probates. It should confine the settlement to the general administration of the estate, and give judgement for the balance which might appear due. . When the balance is ascertained to be due on the general account of the administration the succession is owner, and the heirs would be entitled to such portions of it as on a settlement of their particular accounts with the tutor might appear to be due to each. [493] We are, therefore, of opinion that the inquiry into and settlement of the individual account of each of the plaintiffs with their tutor, was improperly made in the Court of Probates. The judge should have confined himself to the general account of the administration of the estate, and gave judgement for the balance which might appear due. Of the amount so ascertained, the succession would be considered as owner, and the heirs would be entitled to such portions of it as on a settlement of their particular accounts with the tutor, might appear due. Whether on that settlement, each is entitled to an equal share of the balance found due on the general account, or whether their recovery of any portion of it must not be preceded by a partition of the whole estate, showing what portion of it falls to each, is a question which we may hereafter be required to decide, which is by no means free from difficulty, and on which it would not be proper we should now express an opinion. But as this judgement can properly do nothing more than ascertain the balance due to the estate of the testator, execution should not issue on it. When the heirs call on the tutor to render an account of his tutorship of each, the sum which may be ascertained to he due by the judgement which may be rendered on the issue joined in relation to the general account, must be subject to such offsets as may proceed from payments legally made to them individually. In this mode [494] the sum really due to each heir can he easily examined into and correctly determined. Under the course pursued by the Court of Probates, it appears to us impossible to adjudicate legally and satisfactorily on so many conflicting interests. An objection was made to the right of one of the heirs to appeal from the judgement rendered against a coheir, Samuel L. Wells. It appears to us he had an interest, as the amount debited against that heir diminished the balance which would otherwise be due to his coheirs. The plea of prescription is not, in our opinion, sustained, as no account appears to have been rendered to the minor when he came of age. It is, therefore, ordered, adjudged, and decreed, that the judgement of the Probate Court be annulled and reversed; and it is further ordered, that this cause be remanded, to be proceeded in according to law; the appellees paying the costs of this appeal.