Pettingill v. Pettingill , 60 Me. 411 ( 1872 )

Barrows, J.

The case on the part of the appellant, as reported, is deficient for want of any agreement or evidence showing the appellant to be so interested in the settlement of the executor’s account, as to be entitled to an appeal. In the hearing of a probate appeal, the first duty of the appellant is to establish his right to appeal. Ordinarily, unless this is made affirmatively to appear, the appeal will be dismissed without further examination.

In the present case, however, one or two questions of some importance have been raised and commented upon by counsel, apparently with the understanding that the right was to be conceded, and, contrary to the usual course of proceeding, we will assume that it exists, and consider the questions stated in the reasons of appeal.

It is suggested, first, that the appellee never gave such a bond as the statute required, and, consequently, never was legally^ executor, and so not entitled to settle an account of his doings in that capacity. He gave a bond which was approved by the judge of probate when the will was proved in May, 1840, conditioned for the seasonable return of a true and perfect inventory, and for faithful administration according to the will, and for the rendering of a just and true account of his administration within one year.

When the executor nominated in a will has done thus much, and thereby secured the approval and recognition of the judge of probate for his county, we think that the statute provisions, respecting the conditions of the bond which he shall give, must be so far considered as only directory, that he may have the benefit of such of his doings in the premises, as are found conformable to law and the will of the testator, and that the account, which he has bound himself to render, should be considered, and, so far as it is found correct and well vouched, allowed.

A mistake or omission in an executor’s bond, when it has been duly approved by the probate judge, ought not to be held to vitiate what he has rightfully done in the discharge of his trust, unless the opposite party has been in some manner prejudiced thereby. The same remark applies to the objection alleged against the reception of this account, that the executor never returned an inventory and did not settle an account of his administration of the affairs of the estate within a year. This appellant, under the provisions of the will, could have no interest, share, or right whatever in the person-mi property, rights, or credits, and the failure to return an inventory and render a seasonable account could not, in any wise, affect her interests or liabilities unfavorably. The executor’s remissness in these respects would be a proper subject of inquiry in a suit upon his bond, for the benefit of any one who had suffered by reason .of these neglects, and while, under ordinary circumstances, the want of an inventory would subject an account to suspicion, and .call for more careful scrutiny in its allowance, the relations which these parties sustain to each other, under this will, are such, that we cannot view these neglects as affording any reason for precluding the executor from rendering an account now.

The testator gave by his will to his 'beloved wife, Amy Pettingill, ten dollars to be paid her by my executor, in addition to the provisions made for her comfortable support and maintenance in - sickness and in health during her natural life by my legatees, agreeably to the conditions' of a bond entered into by them for that purpose, which is to be in lieu of her dower in my estate, and I hereby charge all my property, real and personal, hereinafter devised, to the true and faithful performance of said bond, and in the event - of the non-performance of the conditions of the same, so much of my estate in the hands of my legatees is to be sold, by my executor at public or private sale, as will produce a sum necessary for the proper and comfortable support of my wife, at any and all times .when said legatees fail to provide such support in conformity with .the conditions of their bond.’

Then he devises three different parcels of real estate in fee-simple to his sons, Benjamin, and Foxwell F., ‘ subject, however, to the charge contained in this will in relation to the support and maintenance of my beloved wife, in the proportion of two-fifths of the amount required for that purpose, and also to the payment of all debts by me owing at the time of my decease in the same proportion.’

He then gives and devises the remainder of his estate, real and personal, to a third son (this executor) and two daughters, ‘ in equal proportions,’ charged with the support and maintenance of the wife and with the payment of debts, ‘ in the proportion of three-fifths of the amount required for that purpose.’

The bond of the legatees, with the performance of the conditions of which the property thus devised is charged, appears to have been designed to be executed upon the same day with the Will, and it is set forth in the condition, that the property is thus devised upon ‘ the understanding and agreement, that his said children, in the proportion of one-fifth each, are to provide for ’ the support and maintenance of their mother so long as she shall live, in sickness and in health, ‘ at such place as she may from time to time choose,’ and if they do this in the manner prescribed, and also pay her annually a sum not exceeding ten dollars ‘ in quarterly payments, to be applied to such uses as said Amy may choose,’ the bond is to be void.

The bond was not executed until nearly two months after the date of the will, and not until after the death of the testator. Hereupon the counsel for the appellant contends that the provisions in the will having reference to a bond, cannot relate to this one, and that those provisions which charge the testator’s real estate for the performance of its conditions are void. But we have no doubt, that although the conditions of the bond are not fully recited in the will, and the instrument was not executed the day the will was made as at first intended, it is nevertheless the identical bond therein referred to, valid and binding upon the obligors, capable of being enforced by suit in the name of Amy Pettingill, and constituting a valid charge upon the real estate devised by the testator, in the manner directed in his will. This seems to have been the view taken of the matter in Pettingill v. Patterson, executor of Foxwell Pettingill, 32 Maine, 569.

It seems that Amy Pettingill has always chosen to live with the executor, and that she is still living at the age of eighty-eight; that after Eoxwell Pettingill’s death, judgment was recovered in her name against the executor of his will at the October term, 1851, for the fifth which he was bound and failed to contribute to her support, at the rate of $22 a year from the date of the bond up to that time. Now Benjamin Pettingill has died without ever having contributed anything, so far as appears, to the support of his mother, and without having taken any steps to relieve the land devised' to him, from the payment charged upon it in the will; and the executor, never having before settled an account, comes forward to settle one, apparently for the purpose of determining how much of that land must be sold, under the power given to him in the will, to coyer the expense of the support and maintenance of Amy Pettingill hitherto.

The appellant, who in some way represents Benjamin Pettingill’s estate, in addition to the objections already considered, claims that the executor was not authorized by the provisions of the will nor by law, to provide Amy Pettingill with support and charge it to the estate of the testator, nor to enforce contribution from any of the devisees, except under the direction of Amy Pettingill, who” takes no part in this proceeding, and is asserted to have waived any claim for support so far as Benjamin’s property, is concerned by reason of having given to him in his lifetime a writing saying-that ‘ no person shall ever call upon Benjamin Pettin-' gill or his property for any part of my support as long as there is any of the other property left.’

It is hardly necessary to remark that this writing indicates nothing like a waiver of support from the estate, but the reverse, and, so far as it attempts to change the burden from Benjamin’s portion t.o the rest of the estate, it is void of effect.

Nor do we think the other position of the appellant above stated can be maintained. The -first object of the testator in his will appears to have been to secure the comfortable support and maintenance during her life of his widow, Amy Pettingill. All that he gave in and by his will, he gave charged with a definite proportion of all the expense necessary for this purpose. And he gave a power to his executor to sell, at public or private sale, enough to produce the sum necessary if the devisee was delinquent. Here was something very like a trust over the whole estate for the benefit of Amy Pettingill.

Whenever any interest in the nature of a trust, or any person or duty implying a trust, is created by a will, and there is no special designation of the executor or any other person as trustee, it is incumbent upon the executor, as such, to administer the estate according to the provisions of the will. Groton v. Ruggles, 17 Maine, 137; Dorr v. Wainwright, 13 Pick. 328.

We think it was not only the right but the duty of the executor to see, that whatever was needful for the maintenance of Amy Pettingill in accordance with the provisions of the will, if not furnished by the legatees, should be supplied, and that the proper method of determining how far the power of sale, conferred upon him by the provisions of the will, should be exercised, is the settlement of an account in probate, wherein he should charge himself with his own fifth of all expenditures and with whatever has been contributed by either of the other legatees or collected from them, and be allowed the cost of the maintenance.

But the appellant further objects that much of the sum charged in this account is barred by lapse of time. We do not think that the statute of limitations has any application here.

‘ A trust or charge, created by will, upon the real estate for the payment of debts, prevents the statute from running against such debts as were not barred in the testator’s lifetime.’ Williams on Executors, Pt. Y, Bk. II, c. 2, p. 1840, and cases there cited. In like manner if a legacy is charged upon the land, and especially where the bequest is of this continuing character, we think nothing short of proof of its fullfilment, payment, or release will bar the claim on account of it; and that the executor, who has fulfilled the requirements of the will in relation to it, is entitled to the same remedy for his reimbursement which the will furnishes to insure its payment to the legatee. The case seems rather to fall within the rules indicated in Nowell v. Bragdon, 14 Maine, 320, and Nowell v. Nowell (not reported) therein cited, based upon the decree passed in the probate court, in pursuance of the decision in the previous case of Nowell v. Nowell, 2 Greenl. 75.

The report provides for a hearing before a judge at nisi prius in this court, to determine the amount to be allowed on the account if the executor is held entitled to render one. Preparatory to that hearing, it remains for us to determine three more questions, two of which are raised by the reasons of appeal, and one is presented by the Appellee.

1. Whatever Benjamin Pettingill actually paid and contributed to the support of his mother is to be accounted for. The accountant should charge himself with all that either of the legatees has paid as well as with his own fifth, thus giving credit to the full amount of their shares to those who have borne their full proportion of the expense, and, pro tanto, for all payments that any devisee has made towards relieving his or her share of the estate. It does not appear that any evidence of such payments by Benjamin Pettingill was offered before the judge of probate, and so far, none has been offered in this court; but under the stipulation above referred to, both parties may yet put in proof upon that point.

2. The same course is to be taken with respect to the value of Amy Pettingill’s services in the executor’s family. It is true that the testator gave her a right to have her maintenance from the estate without labor, but if she preferred to work, and thereby did in fact make the cost of her maintenance less, it should enure to the benefit of all those upon whose lands the cost of the maintenance was charged. That cost was just so much less than it otherwise would have been, and, in consequence, less should be allowed. From her age and from her own testimony on this point, we should infer that the deduction to be made on this account must be slight; but such testimony as either party may have to offer, at the hearing upon this point, is to be considered in making up the amount to be allowed.

3. The probate judge allowed no interest upon the annual installments of expense; and this was in accordance with the general rule and ordinary practice in probate matters of this sort, Storer v. Storer, 9 Mass. 37; for, as a general thing, the executor or administrator is deemed not entitled to interest on what is advanced by him beyond the funds of the estate in his hands, because it is in his power to reimburse himself from the estate at any time, and he is under no legal obligation to advance his own moneys for the benefit of the estate, but may supply himself from the estate as it is needed. But this rule is not of universal application; and where the advances made have been meritorious and beneficial, and the executor or administrator has not been guilty of unreasonable delay, interest is sometimes allowed. Jennison v. Hapgood, 10 Pick. 77; Rix v. Smith, 8 Verm. 365; Dilworth v. Sinderling, 1 Beavan, 488.

In the present case it would have been somewhat harsh in the executor, and needlessly burdensome to the devisees, and wasteful of the estate, if the executor had visited a merely temporary failure to contribute their proportional part by his brothers and sisters, with a sale of some small fraction of the land devised; and, under all the circumstances, we think that interest upon the six annual installments, next preceding the filing of the account, from the time they respectively became due to the date of the decree, should be allowed.

Executor's account allowed. Amount to be settled and decree entered at nisi prius.

Appleton, C. J.; Kent, Walton, Dickerson, and Dan-forth, JJ., concurred.