Fleming v. Walker , 152 Ala. 386 ( 1907 )

ANDERSON, J.

“The rule is that a devastavit by one of two or more executors or administrators shall not charge his companion, provided he has not intentionally or otherwise contributed to it,” and, of course, upon the further fact that he has not made himself liable by the execution of a bond. — Turner v. Wilkins, 56 Ala. 173; Knight v. Haynie, 74 Ala. 542; Williams v. Harrison, 19 Ala. 277; Woerner’s American Law of Administration, vol. 2, § 738; Hinson v. Williamson, 74 Ala. 180. It appears from the evidence that the entire fund left by the testatrix, Mrs. Alsop, had been loaned Billing, and he held it as her debtor up to the time of her death. Conceding that Billing, who was in possession of the fund through his bank, an institution owned and controlled by him, became chargeable as executor, upon assumption of office as such (Seawell v. Buckley's’Distributees, 54 Ala. 592), there was no proof that his co-executor, Fleming, ever acquired the control or custody of the fund, or in any wav directed the management or control thereof as co-executor, and was not, therefore, liable for the devastavit of Billing, if committed in his executorial capacity and not as trustee.

It is insisted that the same rule of liability for the devastavit of a co-executor or co-administrator does not apply to co-trustees, and that they are charged with a greater degree of care as to the trust fund than the former, and that they may be made liable for a mere acquiescence or neglect to bring their co-trustee to a speedy account. Whether this be a recognized distinction or not, we need not determine, for the reason that Fleming cannot be held liable as a co-trustee unless the devastavit by Billing was committed while the fund was held by him as trustee for Walter Alsop, and not as one of the executors of the estate. In order to establish this liability the partial settlement by the executors with some of the legatees, other than Walter, in which the larger portion of the personal assets of the estate was distributed, is relied upon as showing that the fund belonging to Walter was in legal effect transferred from Billing as executor to Billing as trustee. The proof, according to our finding, establishes no more than a mere retention of the fund belonging to Walter by Billing along with the other personal assets belonging to the estate not distributed to the other legatees; and clearly the mere retention by Billing, in the absence of an af firmative act showing his intention to hold it as trustee, did not operate to terminate his liability as executor and impose a liability upon him in his capacity as trustee, for the obvious reason that his holding may be as well referred to his representative capacity as executor as that of trustee. Indeed, the retention must be referred to Billing’s executorial capacity, unless it be made to appear “by some plain and unequivocal act” that he elected to hold the fund in his capacity as trustee. — Governor v. Read, 38 Ala. 252, 255; Perkins v. Moore, 16 Ala. 9; Davis v. Davis, 10 Ala. 299.

The judge of the city court erred in holding Fleming-liable as a co-trustee, but correctly held that he was not liable as co-executor. The decree of the city court is reversed, and one is here rendered dismissing the bill as to Fleming on the original appeal, and affirming tbe decree on cross-appeal.

Reversed and rendered on original appeal, and affirmed on cross-appeal.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.