Leland v. Felton , 83 Mass. 531 ( 1861 )

Dewey, J.

The liability of an executor or administrator to be charged as such in his account of administration for all debts due from himself to the person upon whose estate he administers has been frequently held by this court. It was directly affirmed in the case of Stevens v. Gaylord, 11 Mass. 269, where it was said: “ As soon as the debtor is appointed administrator, if he acknowledges the debt, he has actually received so much money, and is answerable for it. This is the result with respect to an executor; and the same reason applies to an administrator.” “ The consequence is, that he and his sureties in the administration bond are liable for the amount of such a debt, in like manner as if he had received it from any other debtor of the deceased.” This case was followed by that of Winship v. Bass, 12 Mass. 198, to the same effect; as were also the cases of Ipswich Manufacturing Co. v. Story, 5 Met. 310, and Sigourney v. Wetherell, 6 Met. 553.

The same rule has, by analogy, been held applicable to an assignee under our insolvent laws, in Benchley v. Chapin, 10 Cush. 173, and to that of a guardian, in Mattoon v. Cowing, 13 Gray, 387.

The case of Kinney v. Ensign, 18 Pick. 232, has been sometimes urged as establishing the position that the appointment of the debtor as executor did not extinguish the debt, or discharge the further liability of the executor upon his debt as such, and therefore it was not always necessarily io be charged in the administration account. But it will be found that the court, in the opinion given in that case, fully recognize the principles of the earlier cases as to the right of those interested in the estate, to charge the executor in his administration account for a debt due from him to his testator, while they also further hold that they would not, under the circumstances of that case, make it compulsory that the same should be charged in the account as payment, where the debt was secured by a mortgage which would thereby be discharged; and especially that this would not be required in favor of a purchaser of the equity of redemption of such mortgage, who had filed a bill in equity in which a decree to that effect was sought.

In the case at bar, the debt is acknowledged, and' the same was returned in the inventory as assets, and the only inquiry is, whether there are any peculiar circumstances that should operate to take the case out of a well settled general rule. Various reasons are urged as objections to charging the executor in this account with the amount of his indebtedness to the testator.

1. It is said that if he was ever chargeable therefor, it should have been in his first account presented and allowed by the court of probate on the 16th of May 1859. In the opinion of the court the claim was not passed upon in the adjudication and allowance of the former account, in any such manner as to preclude his being required to account therefor in the account which he is now called upon to render. The former account acknowledged the demands as still outstanding. They formed no part of the items of the account allowed as debts and credits, but were appended to the account, and described as notes which it had been impossible to collect up to that time; and which were believed to be fully secured by four hundred shares of the Illinois and Wisconsin Land Company.

2. It is further said that it is too late to charge the defendant in an account as executor for these notes after he has resigned that trust. It is true that one of the reasons early given for holding an executor chargeable in his account of administration with a debt due from himself was the fact that no other mode existed to enforce the claim, inasmuch as he was the legal representative of the creditors, and also of the debtor, and so not subject to an action to enforce payment of the same. But it will be seen from a reference to the adjudicated cases, that the principle upon which the executor and his sureties are held chargeable with his indebtedness to the testator was broader than this, and that the law gives the right to those interested to treat as assets received by the executor the amount of his acknowledged debts to the testator, upon his acceptance of the trust of executor, and returning the same in the inventory as assets of his testator. This legal liability once assumed, cannot, against the will of those interested in the estate, be divested by resigning the trust.

3. There is no legal ground of defence, in the alleged fact that the executor, at the time of taking said trust, had not sufficient property to pay his debts, including those due from him to his testator, and that one year and four months after taking upon himself the executorship he failed and stopped payment, and soon after made application for the benefit of the insolvent laws. Having taken the office, and thereby placed himself in the position of executor, and so continued for this length of time, it is no answer now to charging his indebtedness in his account of administration that, if payment of all his other debts had been enforced, as well as this, he would have been unable to meet them.

4. Nor is this liability necessarily restricted to cases where the executor has already charged himself, in an account rendered, with his own debt to the testator. This case is similar to some of the cases already cited. But the liability assumed on the acceptance of the office of executor is that he will duly account, and such accounting includes all his acknowledged debts to the testator. The present demands were thus acknowledged and made a part of the inventory returned by him. They were not charged in his first account, but were reported in a memorandum annexed thereto as outstanding, and in the manner already stated.

Upon the whole matter, the ruling of this court is that the decree of the court of probate, brought before us by this appeal, be reversed; and that, in stating the second account of the appellee as executor, the said Felton be charged with the debts due from him, and also the debts due from John Felton & Co. to the estate of Isaac Jenkins.