Cabot Bank Appeal from Probate , 26 Conn. 7 ( 1857 )

Ellsworth, J.

We think William Barnes, Esq. was so interested in the settlement of Mr. Sexton’s estate that he was disqualified from acting as judge in the matter of the orders and decrees appealed from.

Before the assignment of Mr. Sexton was made, which was on the 18th day of December, 1852, Mr. Barnes had received from him two notes of hand, made payable to himself or order, one for $1,571.17, and the other for $1,578.17, both of which said Barnes indorsed, and caused to be discounted at the Phoenix Bank. The last note Mr. Sexton took up before he assigned, but the other, when it was about becoming due at the bank, he informed Mr. Barnes he could not pay without assistance, and Mr. Barnes advanced to him $1,250, with which, and the balance from his own means, he took up the note at the bank. Mr. Barnes, having the legal title to certain land which he was to convey to Mr. Sexton, at a future time, upon certain terms, retained it to secure himself for the repayment of the SI,250.

This was the state of things at the time Mr. Sexton assigned. It further appears, that a short time previous to the assignment, Sexton executed a bond and mortgage of $30,000 to Nelson K. Benton, to secure, among other debts, the said debt of $1,250 to Mr. Barnes. The property mort gaged included the property afterward assigned by Sexton. In February and March, 1854, the trustee paid Mr. Barnes the $1,250, which was subsequent to the decrees and orders in question.

We are not able to see why, when Mr. Barnes indorsed these notes and got them discounted, he did not assume a personal obligation to the bank, and so when, at Sexton’s request, he advanced to him the $1,250, he did not become-the proper creditor of Mr. Sexton, and as such, acquire an interest in the property which he mortgaged to secure the repayment. This is the property which was administered upon in the court of probate.

Now unless there be some circumstance which distinguishes this case from others, it is quite obvious, that Mr; Barnes was in the first instance'directly interested in the disposal of the estate which was assigned, and in the amount of the debts to be found by the commissioners and allowed by the court. The great effort in the case has been therefore, to show that there is such a circumstance. And it is this, as urged by the counsel for the trustee, that the $1,250 was really a debt due to the estate of one Chapman, upon which Mr. Barnes had been duly appointed administrator, and was administering, and not to Mr. Barnes as an individual; and further, that that money was taken from the general funds of the estate, although the account of Mr. Barnes in the Phoenix Bank did not discriminate and show but that he held all that he had deposited in the bank in his individual capacity; and further, that the $1,250 was realized out of the notes which, though made payable to and indorsed by Mr. Barnes, were in truth a portion of the estate of said -Chapman. These circumstances do not, we think, constitute a distinction of any importance.

The obligation of Mr. Barnes to pay the bank the note of $1,578.17 was entirely personal, and when he advanced the $1,250 to Sexton to enable him to take it up, Sexton became the debtor of Mr. Barnes, and could have been sued by him for money advanced. The $1,250 standing to Mr. Barnes’ general credit in the bank was his own money, and when he drew it out and gave it to Sexton to be applied on the note in the bank, Sexton owed that money to him and to nobody else. Nor as administrator of Chapman had he a right, except at his own risk, to use the property of the estate of Chapman, if indeed he has done any such thing. Of course we do not question the honesty and fidelity of Mr. Barnes, but only his legal right and authority. Whether in his final settlement of his administration account in the court of probate, he will be able to satisfy the judge, that he has, as administrator, done the best that he could do, and all that he could, and therefore, as it shall turn out, never had, strictly, any personal interest in the settlement of Sexton’s estate, or the property in the mortgage to Benton, we have no power to decide. No one can know until the estate of Chapman is settled.

The counsel for the appellees seemed to place this part of their claim upon a principle of law which we can not sanction ; that a person has not an interest which will disqualify him to sit as judge or juror, if upon the final settlement of his account as trustee, administrator, or guardian, he can now prove, that he will then be able to render a legal and satisfactory account, and show that he has no ultimate interest. We can not know this, and we must look at the case as it is at this time. Besides, we think that all persons who sustain the fiduciary relations of a trustee, administrator, guardian, and the like, are not sufficiently impartial or disinterested and independent, to occupy the seat of a judge or a juror. All such persons are bound to act for the special benefit of those whom they represent; they must employ counsel, procure proof, urge the claims committed to them, and omit nothing which care, diligence, and devotion will accomplish. Surely such persons are not indifferent.

Other questions we pass over, as we are satisfied, for the reasons stated, that the orders and decrees appealed from must be set aside.

In this opinion the other judges concurred.

Advice that decrees be reversed.