Edmonds v. Crenshaw

Mr, Justice M‘Lean delivered the opinion of the Court. This is an appeal from the Circuit Court of Alabama. The complainants, who represent themselves to be the devisees of Aaron Cates, deceased, who, on the 7th of February, 1816, made his will in which he required all his estate, both real and personal, - to be sold at public auction, by his .executors, on a credit of one, two, and three years; the purchaser to give two good freehold securities and a mortgage on the property, to secure the payments. Three bequests, of one hundred dollars each, were made to certain individuals, to one of whom he gave his wearing apparel. After the payment of these bequests, his funeral expenses, and ten per Cent, on monies collected by,his executors, be directed that his exeoutors should vest the entire balance, including the net proceeds of His estate then in their hands, in bank stock; or in shares or capital of such companies or corporations as in their judgments .should be most proper and productive, in trust for certain uses, and subject to certain restrictions: and he appointed “ His friends, Anderson .Crenshaw and James M‘Morris, executors; and on the death of either, the survivor was to be sole executor, with, power of appointing, either by deed or by will, a proper person to carry into effect the provisions of the will.” On the death of the testator, the executors proved'the will in the ordinary’s office for Newberry district, in the state of South Carolina, and qualified as executors. They caused the property to be appraised and sold, and made returns thereof to -the above office: the sale bill, they allege, amounted to the sum of twenty-five, thousand orie hundred and forty-four dollars. And the complainants *168 State that at .the time of his decease, the testator had a considerable sum of money on hand, and that many'debts on accounts, notes, bonds* and mortgages, were due to him^ and afterwards came into the hands of his executors. The bill alleges that the -defendant, one bf the executors, so,me years since, removed from the state of South Carolina to the state of Alabama, without vesting or causing to be vested any part of the funds, belonging to the estate, in the hands of the executors. That the defendant left the state of South Carolina without settling'the •estate or accounting for the funds which came intp his hands; that M‘Morris continued to act as executor; and that there is in the hands of the .executors about the sum of sixteen thousand dollars, funds of the estate; and that they have .neglected, and. refused to account for and pay over thé same. That M'Morris is insolvent; and the complainants pray that the executors may account, &c. The defendant, Crenshaw, in his answer, admits that Aaron Cates made the will, as stated in,the bill,.and that it was proved; that he was qualified with M'Morris as executor, made the returns to the ordinary as stated, but does not recollect the amount of the estate. He states that a .part of the.-.estate sold by the executors was recovered from-the purchasers, by others; and’ that debts to a considerable ' amount were paid by the executors. He ’ admits that in the year 1819 he removed to Alabama: and that the executors previous to this time made no investment of the funds, .because the amount on hand was small, and Mrs. Wadlington, one of the legatees, and only daughter of the testator; and who was the natural guardian- of her then infant children, who were the principal- legatees, opposed such investment by every means in her power. And' the defendant states that before he left South Carolina, he surrendered up and delivered oyer to M'Morris, his co-executor, all the assets of the- estate which had come to his hands; including cash, evidences-pf debt, and other liabilities; and took from him a receipt, which is made a part of the answur. That until this time, he and his co-executor had -made correct returns to the ordinary of their proceedings;- and that since then, he has not intermeddled with the estate. ■ The parties',agréed to go to a hearing on.the bill and answer; and that the receipt referred to in,-the answer given by M'Morris to the defendant, should be considered as duly proved. On the bill, answer, and-receipt, the question arises whether the defendant is discharged'from the trust under the will. ' Where there are two executors in a will, it is clear that each has a right to. recéive thé debts due to the éstate, and all other assets which shall come into his hands; and-he is responsible for the assets he .feceivesi This responsibility results from the right to receive, and the nature .of the trust: and how can he discharge himself from,this responsibility? Jn this case the defendant has attempted to discharge himself from, responsibility, by paying over the, assets .receivéd bv him to *169 his co-éXLMitor. But such payment cannot discharge him. ' Having received the assets in his capacity of executor, he is bound to account for the same: and.he must show that he has made the investment required by the will, or in some other mode, and in. conformity with the trust, has applied thé ftinds. One executor having received funds cannot exonerate himself, and shift thé trust to his co-executor, by-paying over to him the sums received. Each "executor 'has a right to receive the debts due to thé estate, arid discharge the débtors; but this rule does not apply as between the executors. They' stand ujxon equal ground, having equal rights, and the Same responsibilities. . They are not liable to each other, but each is liable to the cestuis que trust, to'the frill extent of the funds he receives. Douglass vs. Satterlee, 11 Johns. 16. Fairfax’s Executors vs. Fairfax, 5 Cranch, 19. The removal of the defendant from the state did not. render him incapable of-discharging his duties as executor; much less did it release him from the assets he received and paid over to his co-executor. . In the case of Griffith vs. Frazier, 8 Cranch, 9, this Court' held; “ that an .executor who absents himself from the state after taking out letters testamentary, is still capable of performing, and is hound to perform, all the duties of executor.” This was a case where there was but orie executor. The liability of the defendant arises under the laws of South Carolina, which regulated his duties as executor. He is responsible for all the assets of whatsoever kind which came into his hands as executor; and which he has riot accounted for and paid over, as directed by the will. The Circuit Court held, that the facts set up in th.e answer, with the' receipt of his co-executor, released the defendant from his trust; and from all responsibility under it. In this the Court erred, and their decree on this ground is reversed and annulled,; and the cause is remanded to that Court, with directions to have an account taken of all the assets which came into.'the possession of the defqnd^nt as executor, and to enter'a decree in favour of the complainants against him, for the amount he. shall have received and not accounted for to the ordinary, and paid over, in conformity with this-opinion.