Ames v. Armstrong , 106 Mass. 15 ( 1870 )

Ames, J.

Coexecutors, even though numerous, are regarded

in law as but one person. The acts of one, within the scope of his authority, in the administration of the estate, are the acts of all, with this qualification, that at common law each was responsible only for such assets as came to his own hands. Under ordinary circumstances, one of two or more executors was not to be held accountable for waste or other misconduct on the part of an associate. The misplaced confidence of the testator in the integrity or capacity of one of the number was not allowed to operate to the prejudice of another. But even according to the common law, whenever any part of the estate, by any act or agreement of one executor, passes or is intrusted to the custody of a coexecutor, they are thereby rendered jointly responsible. In such a case it would be inferred that there had been a joint possession or custody, and that one executor, having power and opportunity to make it secure, had yielded the control to the other. In Langford, v. Gascoyne, 11 Ves. 333, Lord Eldon held two executors jointly responsible for assets, consisting of gold in a bag, which had been delivered to one of them, and by him, immediately and without counting, handed to the other, by whom it was subsequently squandered or embezzled. Gill v. Attorney General, Hardr. 314. Sadler v. Hobbs, 2 Bro. Ch. 114. Cresse v. Smith, 7 East, 246, 256. Hovey v. Blakeman, 4 Ves. 596. Brice v. Stokes, 11 Ves. 319. Monell v. Monell, 5 Johns. Ch. 283, 296. Sterrett’s appeal, 2 Penn. 419. Edmonds v. Crenshaw, 14 Pet. 166.

Whether, upon the facts set forth in the report, such a case of joint possession is presented as to render Turner liable at common law for the fraud and embezzlement committed by his associate, is a question which it is hardly necessary to decide, as the whole case turns upon the effect of the bond given by the two. At common law no bond was required of an executor, but his office was considered as a personal trust, resting in the confidence of the testator in the qualities which led to his selection for that special duty. By the terms of the will, these executors were not required to furnish sureties upon the assumption of their trust. They however gave a bond, according to the requirements of the Gen. Sts. c. 93, § 2, and we find it impossible to avoid considering that bond as binding equally on both, and making each of them liable for its entire fulfilment, at least as to all assets included in their inventory and which have come into their joint possession. It purports to be their joint and several bond. It provides that they shall return an inventory; that they shall administer according to law and the will of the testator; and that they shall render an account. They were not required by law to enter into a joint obligation. Each might have filed a separate bond. But having united in a joint bond, its effect is to make them both liable to the judge of probate as the trustee for creditors and others interested in the estate, to the extent of the assets which came to their joint possession. The authorities are clear that under such a bond, whatever may have been their common law rights, they are jointly responsible during the continuance of the joint executorship. Brazer v. Clark, 5 Pick. 96. Newcomb v. Williams, 9 Met. 525. Towne v. Ammidown, 20 Pick. 535. Boyd v. Boyd, 1 Watts, 365. Sparhawk v. Buell, 9 Verm. 41.

According to the agreement, an assessor is to be appointed to determine the amount for which execution is to issue against the defendants jointly, in compliance with this decision.

Ordered accordingly.