Estate of Robinson v. Hodgkin

WiNslow, J. There is but one serious question arising in this case, and that is whether the executor'should be charged with his own note, given to the deceased in his lifetime. The note was in the possession of the deceased at the time of his death, and afterwards came to the hands of the executor, but he did not include it in the inventory, nor did he charge himself with it in his filial account. It may be inferred from these facts that the executor claims that this note has been paid, or that he has some defense to it, although no such claim is directly made in any pleading in the case. It is enough to say that the evidence amply justifies the finding that the note belonged to the estate, and had not been paid except as to the $25 payment indorsed upon it. But it is said that it cannot be regarded as money in the hands of the executor, nor charged against him upon the accounting, but that the question whether the executor was a debtor of the estate could only be determined in some direct proceeding brought against him, and reliance is placed upon the case of Lynch v. Divan, 66 Wis. 490, to support this contention. When a creditor makes his debtor the executor of his will, the right of action for the debt is said to be discharged, for the reason that the executor cannot sue himself. But, while this is so, the debt itself cannot be said to be discharged in any case where creditors of the estate will be prejudiced, nor where the will shows an intention that the debtor is not to be discharged. In all such cases, at least, the rule is well settled in Massachusetts, and has been adopted in this state, that the note or security beoomes assets in the hands of the executor, for which he must account. In the judgment of the law the debt is to be considered as having been paid to the executor, and to be treated as money in his hands. Stevens v. Gaylord, 11 Mass. 256; Winship v. Bass, 12 Mass. 199; Finch v. Houghton, 19 Wis. 149. Nor can the executor escape this liability by failing [331] to charge himself with the debt in his inventory. Tarbell v. Jewett, 129 Mass. 457; 2 Williams, Ex’rs (7th Am. ed.), 624, 629. It is not believed that it was the intention of this court to depart from this doctrine in Lynch v. Divan, supra, and any expressions in the opinion in that case which are at variance with the doctrine must be considered as disapproved. That case was an application to compel a debtor executor to pay a debt proven against the estate out of the debts of the executor to the estate, a large part of which appeared on their face to be outlawed, and the question of the liability of the executor never having been determined by any accounting or other proceeding of a similar nature. It may well be that upon such a summary proceeding the court would not be justified in treating the executor’s obligation as assets in his hands. But where, upon final accounting, the whole question is open, and any defense which the executor may have can be tried and determined, if it be found that the debt existed, there seems no good reason why it should not be considered as money in the hands of the executor, in accordance with the doctrine above cited. This necessarily results in an affirmance of the decision of the circuit court on the question of the accountability of the executor for the note. As to the item of $102 which' the judgment directs the executor to charge himself with on account of rent received for the saloon, there can be little question. The saloon and homestead were rented together by the deceased for the gross sum of $16 per month. There was evidence showing that the deceased and the tenant and the executor himself considered that the rental of the saloon amounted to half of this sum, although the lease itself did not specify what part of the rent was for the saloon and what part for the house. The executor only charged himself with $5 per month, although he received the entire sum. Under these circumstances, we think the practical construction which the parties [332] bad given the lease controls, and that the conclusion of the trial court was correct. There is absolutely no evidence that there was any error of $50 in the footings of the executor’s account as the account appears' in the record. If there ever was any such error, it must have been corrected in the county court upon the account itself; and there are some indications that this was the case. Certainly, there is no error in the footings of the account as returned in the record, according to any of the rules of arithmetic with which this court is familiar. Doubtless, this erroneous finding was a simple oversight, which would have been corrected if it had been brought to the attention of the trial court. The circuit court found that the appeal from the county court to the circuit court was taken in bad faith, and hence rendered judgment against the executor personally for the costs. We are unable to say that this finding was not sustained by the evidence. It is objected that the “ Estate of S. P. Robinson ” is not the proper party, but that the personal representative of the estate should have been named as the party plaintiff. It appears that the executrix was the party who actually made the contest, and that the defect is one of nomenclature simply. We do not regard the error as of substantial importance. By the Court.— That part of the judgment which orders the executor to charge himself with $50 error in footing is reversed, without costs, and the balance of the judgment is affirmed, with costs, to be recovered against the appellant personally.