Thompson v. White ( 1858 )

The opinion of the Court was drawn up by

Davis, J.

The appellee, in the case first mentioned; is administrator of the estate of George H. Small. From the evidence reported, it appears that Small was master of a vessel owned by the appellant, and that,'in Havre, in January, 1856, he received freight to the amount of 38,450 francs. This money was paid by him to Messrs. Barbe & Morisse, the consignees, by whom the vessel’s accounts were kept.

While in Havre, Oapt. Small loaned to one Alexander three hundred dollars of the money belonging to the vessel, taking a promissory note therefor, payable to himself. He died on his return, and this note was in his hands, unpaid, at the time of his decease. The appellant claimed it of the administrator, into whose possession it had come, but he refused to give it up; and it was appraised' as part of the estate, and was afterwards paid by Alexander. The administrator charged the amount to himself; the whole of the personal estate, except $78,24, was given to the widow as her allowance, and the administrator’s account, crediting himself with this payment, was approved by the Judge of Probate.

"We cannot doubt that the money loaned by Capt Small, for which the note was given, was the property of the appellant; The note was, therefore, the property of the appellant, and was held by Small in trust. It was distinguishable from the other assets of the deceased; the. administrator had notice that it belonged to the appellant; and, the proceeds having come into his hands, he is personally liable therefor. Chesterfield Manufacturing Co. v. Dehon, 5 Pick. 7. It is important, therefore, for his own protection, that the proceedings in the Probate Court should be made to conform to the rights of the parties. Before any allowance is made to the widow, he should credit himself with the amount received on the note, that the amount of personal property may be known.

The decree in each of the cases is reversed, and they are remitted to the Probate Court for further proceedings.

Tenney, C. J., Hathaway, Bice, Appleton, and May, J. J., concurred.