Brandon v. Hoggatt

Hahdy, J., delivered the opinion of the court. This is an appeal from a decree of the Probate Court of Adams county, against the administrator of Richard S. Williams, deceased, — 339 — who was one of tbe executors of tbe last will and testament of Nathaniel Hoggatt, deceased. It appears that tbe testator died in October 1853, and in December 1853, Williams and Brandon, two of tbe executors, took out letters and filed an inventory showing a large amount of assets. At tbe March term 1854, of the Probate Court, Williams filed a petition showing that he bad in his hands a large amount of money over and above what was required to pay the debts, and sufficient to distribute to the residuary legatees each, the sum of $25,000, of whom his wife was one ; and praying for an order of distribution accordingly, and for liberty to pay the sum due his wife and take her receipt, reserving enough to pay expenses, &c. And the court thereupon ordered that the prayer be granted. At the April term, he returned an account showing that he ha'd paid to his wife the sum of $25,000, in pursuance of the order of the court, and claiming allowance for sundry sums of money paid by him to attorneys. Williams left this State for the north in the summer of 1854, leaving the distributive share of Anthony Hog-gatt, ¿unpaid. He was addressed by letter after his departure, demanding payment; but it is not shown that he received the letter, and he was afterwards lost in the month of September 1854, in the steamer Arctic. His co-executor, Brandon, afterwards paid to the administratrix of Anthony Hoggatt, about the sum of $10,952, being so much of the sum of $25,000 due that estate, as was in his bands. In May, 1855, Sandifer J. Hoggatt, as administrator of Williams, filed a petition in the Probate Court praying that the account returned by Williams at the April Term, 1854, should be confirmed, after allowance of commissions, as a final settlement of Williams’ account. Exceptions to this account were thereupon filed by Anthony Hoggatts’ administratrix, and also by Brandon as surviving executor and in behalf of his wife, and upon the hearing, these exceptions were for the most part sustained, and a decree made for distribution against Williams’ administrator, the particulars of which will be presently noticed; and from this decree appeals were taken and are prosecuted both by Williams’ administrator, and Brandon as surviving executor. — 340 — The first objection raised to the decree, applies to so much of it as charges the administrator of Williams with interest upon that part of the sum of $25,000, which, upon his application to the Probate Court at March term, 1854, he was directed to pay over on account of Anthony Hoggatt’s share as a residuary legatee. It is insisted that the money was not legally demandable by the legatee until after the lapse of twelve months from the grant of administration; and, therefore, that no interest was recoverable from a prior period, although the money was in the executors hands, and he admitted that it was ready for distribution, and that there was no necessity for his retaining it. —"’’The question whether interest should or should not be allowed against an 'executor, depends, for the most part, upon the circumstances of the particular case. It has been recognised as a general rule, that he should not be charged with interest until after the expiration of twelve months from the grant of letters testamentary; and this is upon the reason, that he cannot, under our laws, be compelled to distribute until the lapse of that period. But this is merely the general rule, which should prevail, unless there be circumstances showing that it would be just to charge him with interest from an earlier period. This rule is founded on the presumption, that it may be necessary for the executor to keep the funds in his hands for the first year of his administration, to answer the exigency of the testator’s affairs ; and hence the rule is settled in England that, according to the ordinary course of the court, the fund is not distributable until the lapse of that time. Yet if the executor keeps the money dead in his hands, without apparent reason or necessity, he will be' chargeable with interest. 2 Wms. Ex’ors, 1132, (1st Am. ed.) And if it be clearly shown that there was no necessity for his retaining the fund,, there can be no reason why he should not be accountable for interest, merely because the period of twelve months had not elapsed when it should with justice X^Jiave been distributed,- Otherwise he might claim exemption from liability for interest, upon the same ground, if he had before the lapse of the year applied the fund to his own use and made a profit by it. The facts of this case show clearly that there was no necessity — 341 — or even excuse for retaining the fund. He fully admitted that, in his application for an order to make distribution; and he acted upon the authority which was'granted, by immediately paying over the amount due his wife. By his own admission, then, he held in his hands a large amount of money due the other legatees, and which he should have paid over, and was, in fact, at his own solicitation, authorized to pay over; and he must be considered as having used the fund for his own profit, and was justly chargeable with interest. We think that the decree is correct in this respect. The .second ground of objection to the decree taken by the executor of Williams is, that the court disallowed certain items claimed in his account as having been p’aid for attorneys’ fees. These credits were properly rejected. They were not shown to be for professional services rendered for the benefit of the estate, in prosecuting or defending suits, or otherwise, which were allowable as charges against the estate. As to the sum paid by the executor to an attorney for drafting a release of the legatees’ interest in real estate in Louisiana, as a condition to the enjoyment of the legacies, that was not a part of the duty of the executor to be charged against the estate, but should have been done by the parties for whose benefit it was done. There is no evidence to show that those items came within the rule held by this court to entitle the executor to claim an allowance for them out of the estate. Satterwhite v. Littlefield, 13 S. & M. 302. It is also objected, that it was error to direct that the allowance of commissions to Williams should be paid out of other funds than the money in his hands, and which should have been paid over in March, 1854. There were other assets out of which the commissions could be paid; and as the share due the other legatees, according to his admission, had been paid, and he was delinquent in paying that due to Anthony Hoggatt’s estate, it was proper to have his commissions .paid out of other assets of the estate in which all the legatees were interested, and not to charge them upon the single share of one legatee, whose share he had improperly delayed to pay. In behalf of Brandon, the co-executor, it is objected that the court — 342 — erroneously refused to charge Williams with the amount of a note against one Groves, due the testator’s estate. It appears that this note came to the hands of Williams, and that it cannot now be found, and therefore it is claimed that he should have been charged with the amount. So far as the evidence goes to explain the transaction, it appears that Williams settled the note with Groves by taking into account a claim alleged to be due to Groves from the estate of the testator in Louisiana. But there is no proof or authentication of the character or amount of the claim of Groves, and if it was valid, it related to the estate in Louisiana, to which the assets ■ in this State could not have been legally applied. There is no voucher of the claim, and no showing in relation to it which would have justified the Probate Court in allowing it. Under such circumstances, it was manifestly improper for the court' to treat it as having been properly paid; and therefore the estate of Williams should have been charged with the amount of the note which came to his hands. Another objection raised in behalf of Brandon is, that the legacy claimed by the administratrix of Anthony Hoggatt, is subject either to forfeiture or compensation by reason of the fact that the administratrix brought suit against the executors of Nathaniel Hoggatt, for some of the property embraced in the residuary clause of the. will under which she now claims, and recovered judgment; and in consequence of this, the residuary legacy is either forfeited or must be applied to satisfy the other legatees to the extent of the property claimed adversely. But this question does not appear to be presented by the pleadings. The record presents simply a case of the settlement of an •executor’s account, and that not even a final settlement of the entire estate; and no question is presented with regard to the conflicting claims of the legatees ; nor indeed are they even made parties to the proceeding. The record does not therefore present for consideration the question proposed. The decree must be affirmed, as to the matters embraced in the appeal of Williams’ administrator, and in all other respects, except as to the disallowance of the exception of Brandon on ac — 343 — count of tbe note of Groves. That exception should have been sustained, and the administrator charged with that amount. Judgment reversed, and cause remanded to be proceeded with accordingly.