Springer v. Oliver , 21 Ga. 517 ( 1857 )

By the Court.

Benning, J.

delivering the opinion.

It appears that the will, after giving off two legacies, directed the executor to convert the residue of the estate into money, and then, to divide the money among six nephews and nieces of the testator, Ibnijah Joyce, the intestate of the «complainant, being one of the six; that the executor, after paying the two legacies, did convert the residue of the estate into money; and that afterwards, some time before February, 1845, he deposited the share of this money coming to Ibnijah Joyce, in bank, where it remained till 1849, without, profit; that he did this act in pursuance of legal advice; that he reported the act to the Court of Ordinary in his return for the year 1845, and that the return was admitted to record by that Court.

It also appears that Ibnijah Joyce, at the time when the money was deposited in the bank, resided in Illinois; and that notice to him or his legal representatives, was published in a newspaper of this State, and was' directed to.be published in a newspaper of the State of Alabama, in which State, the executor supposed Joyce or his representatives to reside.

The question was, whether the executor was liable for interest on the legacy, for the time during which it remained in bank as aforesaid. The Court below held that he was. I think that he was not.

I admit, that if it was the duty of the executor to lay out the money of which the legacy consisted, for the benefit of the legatee, instead of letting the money lie idle in bank, the executor was liable for interest on the money. 2. Wms. Ex’ors, 1309. But I deny that this was his duty, — his duty under the circumstances of the case, as above detailed. And I do so for these reasons:

1st It is the privilege, it it is not the duty, of an executor (or administrator), to keep on hand such a quantity of money as will be sufficient to satisfy undisputed debts outstanding against the estate, and to meet other similar exigencies, to which he may know that the estate will be subject. Id., 1310.

Now, at the time when the money representing the legacy aforesaid, was deposited in bank, the administration had advanced to a stage at which the amount of the legacy had been ascertained, and at which the legacy had become due. At this time, then, the executor was in a situation in which he would be bound Jo pay to the legatee the legacy whenever the latter might-call for it.

It was, therefore, the privilege, if it was not the duty, of the executor to keep himself in a state of readiness to meet this demand, whenever it might present itself. And it was such a demand that it might present itself at any moment.

That the legatee resided out of the State, could have made no difference. There is no provision in the law, for the notification to legatees of their legacies. And, therefore, in respect to such notification, the condition of a legatee residing out of the State, is, under the law, as good as that of a legatee residing in the State.

It would, perhaps, have been allowable for the executor to invest the money constituting the legacy in State “ securities.” But the Act in respect to investments in such securities, is an Act conferring an authority — not one imposing a duty. And it is, at least, doubtful, whether the Act extends to cases in which the fund is one that may be needed by the executor at any moment, for the payment of debts. Cobb Dig. 333.

2d. It is the privilege, if it is not the duty, of an executor (or administrator), to do what he is authorized to do by the Court of Ordinary.

The jurisdiction of that Court over executors and administrators is very extensive. It extends to “all testate and intestate estates,” to the appointment of “administrators,” to the qualification of executors and administrators, and, to “all such other matters and things as appertain or relate to estates of deceased persons.” Pri. Dig., 239.

The jurisdiction includes specifically, the right of the Court to have, annually, from executors and administrators, “ a full and correct account of the estate and condition” of the estate in their hands; and it imposes the duty on the 'Court to examine such accounts, and then to “ approbate or reject them ” Id., 240.

The jurisdiction includes a large remedial power. The Act of 1821 on that subject, has these words — “when such Court shall know, or be informed that any such guardian, executor, or administrator shall waste or in any manner mismanage the estate of such orphan or deceased person,” “ or where such executor, or administrator, or guardian,shall fail to make returns within the time prescribed by law,” “ said Court” “may, and are hereby authorized and empowered to revoke the trust confided to him, her, or them, or pass such other or further order as said Court may think expedient and fit.”

These are some of the grants of power to the Court of Ordinary.

A Court with such powers, might, in my opinion, have legally authorized the executor to pursue the course which the executor in this case did pursue.

And the Court of Ordinary of the proper county, did, in fact, authorize him to pursue that course. For it “approbated” his return which contained a statement of the course he had pursued; viz : a statement that he had deposited the money in bank. And every ratification is equal to an original authorization.

3d. It is declared by the Act of 1840, “for the relief of executors,” and, that “ when any executor” “ shall have given and published the notice now required by law, of his or her application to the proper Court for letters of dismission,” “ and it shall appear that there are any moneys in his or her hands due the estate,” “ and no person claiming the same, such Court shall, in their discretion, pass an order authorizing said executor to retain the amount in his or her hands until the further order of the Court, at an interest not exceeding four per cent, per annum; or requiring him or her to deposit said amount in such solvent bank as the Court may direct, subject to the order of the Court.” Cobb Dig., 332.

At the time when this executor made this deposit, the estate was in a condition which would have authorized the executor to apply for letters of dismission.

Now, if the executor had applied for such letters, the result.would probably have been the same as was the result of that course which he did pursue. The money constituting the legacy, would, probably, have got into a bank as a deposit. That certainly would have been the result at the option of the executor. The money would have gone into bank, unless he had chosen to keep it on the terms of paying interest on it at four per cent.

4th. Is it any part of the duty of an executor to manage the fund of a legatee who is sui jur is, and whose right to the fund has fully vested? I doubt extremely if it is.

For these reasons, I think that the executor was not liable for interest on the legacy, for the time during which it remained in bank.

And I am the better satisfied with the conclusion, because it is one which, as it seems to me is equitable, as well- as legal. The executor acted openly; acted in good faith;. made no profits. Before acting, he took legal advice ; after acting, he communicated his act to the Court to which it ought to have been communicated.

Judgment reversed.

Lumpkin, J. concurred.