Lathrop v. Bampton ( 1866 )

By the Court, Sanderson, J., on rehearing:

After our former judgment was rendered, a petition for a rehearing was filed, in which the ground was taken for the first time that the complaint might be treated as a bill in equity for an account, and that in that aspect no presentation of the claim to the defendant before suit could be necessary, and hence that the judgment, instead of being reversed, should be so modified as to convert it into an ordinary judgment for so much money, to be paid in the due course of administration out of the assets in the hands of the defendant. Upon this point we deemed it proper that an argument should be had, and the case was accordingly opened for that purpose.

Upon further consideration, we are satisfied, however, that there are no grounds upon which this can be treated as an action for an account. The complaint is not drawn upon any such theory, and no facts are stated which would entitle the plaintiffs to an action of that character. The defendant cannot be charged and held to account as a trustee, except upon the averment that he has come into the possession of the trust fund or its substitute. If at the time of his death the defendant’s testator was in the possession of the trust fund, or other property into which he may have converted it, and such fund or other property had come into the possession of the defendant, he would have held it upon the same terms as his testator held it and the relation of trustee to the ward of the plaintiffs would have been added to that of executor by virtue of his successorship. Such fund or other property would have constituted no part of the testator’s assets, and the defendant would not have held it in his capacity as executor but in his capacity as succeeding trustee to the plaintiffs’ ward, and might have been compelled to account as such. But such is not the case. Neither the trust futid, nor any substitute for it which can be identified as such, has come into the hands of the defendant. On the contrary, the trust estate is gone, or, which amounts to the same thing, its identity is entirely lost, for it is not shown to be in the hands of the defendant in its primary condition, or that it was converted by the defendant’s testator into the property or any part of it now in the defendant’s possession as executor. Hence the defendant does not stand in the relation of trustee to the ward of the plaintiffs beyond the obligations imposed by his office as executor, and she has no remedy against him except such as belongs to a general creditor of the estate. (Trecothick v. Austin, 4 Mason, 29; Johnson v. Ames, 11 Pick. 181.)

We are of the opinion that there is nothing in the case which entitles it to be regarded as an action for an account, or exempts it from the operation of that provision of the Probate Act which requires all claims to be presented to the executor or administrator before an action is brought. Judgment reversed and new trial ordered.