Thurston v. Doane , 47 Me. 79 ( 1859 )

The opinion of the Court was drawn up by

Rice, J.

The facts offered to be proved in this case are substantially the same as were offered to be proved in the case of Thurston v. Lowder, 40 Maine, 197. In that case the attempt was to charge the administratrix, in her representative character, with the same money for which it is now attempted to charge the estate of Wilkins, who was the original executor on the estate of Samuel Lowder, and by whom the money in controversy was obtained for that estate.

The former action against the representative of Lowder’s estate was defeated by the interposition of the statute of limitations. There was no suggestion that it was not brought against the proper person, or that, if the facts offered to be proved had been substantiated, the plaintiff would not have been entitled to prevail if his action had been seasonably commenced.

In that case this Court held, that the money collected under the Mexican commission, by the defendant’s intestate, was not to be deemed new assets in his hands, but rather in the nature of a debt due to the intestate Lowder, at the time of his decease, and afterwards collected through the medium of the government, and was to be treated as other assets of said intestate in the hands of his executor, in which the plaintiff, in his representative character, had an interest.

The decision of that case was fully supported by the case of Foster v. Fifield, 20 Pick., 67.

But suppose it were otherwise. Should the money collected by Wilkins, under the Mexican commission, be deemed new assets accruing and coming into his hands after the decease of Lowder, and for which no right of action accrued against Lowder in his life time, still the action would have been properly commenced against the representative of Lowder’s estate, in his representative character.

In the case of DeValengin's adm'r v. Duffy, 14 Peters, 282, which is a case in its principal features closely resembling this, the Court says, “ there are doubtless decisions which countenance the doctrine, that no action will lie against an executor or administrator, in his representative character, except upon some claim or demand which existed against the testator or intestate in his life time; and that, if the claim or demand wholly accrued in the time of the executor or administrator, he is liable therefor in his personal character. But, upon a full consideration of the nature, and of the various decisions on this subject, we are of opinion, that whatever property or money is lawfully recovered or received by the executor or administrator, after the death of his testator or intestate, in virtue of his representative character, he holds as assets of the estate; and he is liable therefor, in such representative character, to the party who has a good title thereto. In our judgment, this, upon principle, must be the true doctrine.”

It is, however, contended that if this be so, an action will also lie against such executor or administrator, personally, and that the claimant may elect to seek his remedy against either person or both. - How that might be under other circumstances, or as a purely abstract proposition, it is not necessary now to determine.

But in this case, after tbe plaintiff or his intestate has seen tbe defendant’s intestate, acting in bis representative character, institute a claim under tbe Mexican commission for the money now in controversy, and stood by and seen that claim thus successfully prosecuted, and tbe money collected and inventoried, and accounted for as a part of tbe assets of tbe estate of Lowder, not only without objection, but apparently with bis concurrence and approbation; and when we further consider that Wilkins could not have obtained one dollar of that money in any other- capacity than as representing tbe estate of Lowder; and after tbe plaintiff, with a full knowledge of all these facts, bad instituted a suit against Wilkins, in bis representative character, in which be failed only in consequence of bis own laches, it is too late for him to bold tbe estate of Wilkins liable for tbe money thus collected and paid out, as for a personal liability. By well settled principles of law and equity be is estopped from so doing.

Nor does tbe offer to prove that soon after Wilkins received tbe money, be was informed, by a person not interested in the matters, that it was probable that some claim would be made by said Rider’s heirs, or representatives, for a portion of said money, and that be was advised by said person not to pay over all said money to said Lowder’s estate, but hold it to meet such claim, if made and sustained, change tbe aspect of tbe case. No fact seems to have been stated by this volunteer as a reason for his gratuitous advice. He bad no interest in tbe matter, nor was be authorized to speak for those who were interested. Wilkins was not bound to observe or act upon idle unauthorized suggestions. He could not have done so without a violation of bis duty to tbe estate which he represented.

According to tbe agreement of parties a nonsuit must be entered.

Tenney, C. J., and Cutting, and Goodenow, JJ., concurred.