State ex rel. Hewlett v. Hewlett

Bartol, C. J., delivered the opinion of the Court. This suit was brought on the testamentary bond of James W. Hewlett, executor of John Q. Hewlett deceased, to recover a legacy of $5000, given by the will to Jack Q. Hewlett. The defendants filed a general demurrer to the declaration, which was sustained, and judgment being thereon entered for the defendants, the plaintiff has appealed. It appears from the averments in the declaration that the testator devised and bequeathed “ all the rest, residue and remainder of his estate” to James W. Hewlett in fee, upon the condition that he should pay to Jack Q. Hewlett the sum of $5000, upon the arrival of the latter at the age [143] of 25 years, and the will declared that sum should be a lien or charge upon the residue of the estate so given to James W. Hewlett. The testamentary bond was executed on the 14th day of December 1864. On the 18th day of January 1866, it appeared by the administration account passed by the executor, that there remained in his hands the sum of $16,426.34 in money, the residue of the personal estate, after the payment of all debts and charges, which by that account was passed over to, and held by him as residuary legatee. Jack Q. Hewlett attained the age of 25 years on the 26th day of June 1876. The ground of the present suit is the alleged breach of duty on the part of the executor, in having failed to cause the residue of the personal estate remaining in his hands, or so much thereof as was necessary for that purpose, to be invested under the direction of the Orphans’ Court, or some other Court of competent jurisdiction, to secure the payment of $5000, to Jack Q. Hewlett on his reaching the age of 25 years. The only question in the case is whether the failure so to invest, was a breach of duty on the part of the executor, for which the testamentary bond is liable. It has been contended that this duty was imposed on the executor by the 10th sec. of Art. 93 of the Code ; but in our judgment that section has no application to a case like the present. Without quoting the words of the section at length, it is sufficient to say that it applies only where by the will “ money or some other thing” is directed to be paid at a distant day, or upon a contingency, and where in the meantime the legacy is not disposed of, but must, by the terms of the will, or otherwise, remain*in the hands of the executor, or the administrator c. t. a. • In such case it is made the duty of the executor, or administrator, to apply to a Court of equity or to the Orphans’ Court, and [144] to invest the same under its direction, for the double purpose, as the section declares, of preventing the fund from lying dead, or being unproductive, and of securing its payment to the person who may be ultimately entitled. But in this case the will does not direct that the residue, or any part of it shall remain in the hands of the executor, on the contrail it is expressly devised and bequeathed to James W. Hewlett absolutely, subject only to the proviso or condition, that he the devisee shall pay $5000 to Jack Q. Hewlett, when the latter should reach the age of 25 years ; — an event that did not occur till nearly tioelve years after the testamentary bond was executed, and more than ten years after the 'passage of the final account of administration. It is very clear that to such a case, the section of the Code above cited has no application. When the residue was ascertained James W. Hewlett became entitled thereto as residuary legatee, and when the same was passed over and retained by him in that character, his testamentary bond was discharged. The securities thereon were in no manner liable or bound to Jack Q. Hewlett for the payment of the $5000, or for its safe investment for his security; the fund was from that time in the hands of James W. Hewlett, not as executor, but as devisee. Ellicott vs. Early, 8 Gill, 439. The whole legal and beneficial interest in the residue was vested in him as devisee, subject only to the charge in favor of Jack Q. Hewlett. 2 Story’s Eq. J., sec. 1245. As to that charge he held as devisee in trust. Crawford vs. Severson, 5 Gill, 443. For the enforcement of this trust the testamentary bond was in no manner answerable; as before said, that had been discharged. The remedy of the appellant, in case he apprehended loss, was by application to a Court of Chancery under Art. 16, sec. 138, of the Code. The will did not direct an investment of the residue or any part of it, and the executor was not bound to make [145] such investment, his duty was discharged by the payment thereof to the residuary devisee named in the will. If that devisee had been a third person, there never would have been any question of the discharge of the sureties upon the testamentary bond ; the same rule applies where the executor is himself the devisee and entitled to receive and retain the fund in that character. (Decided 8th March, 1878.) Judgment affirmed.