Troup v. Rice , 55 Miss. 278 ( 1877 )

Chalmers, J.,

delivered the opinion of the court.

The primary object of the bill was to force a final settlement, and, as a necessary part of such settlement, to make the-executor liable for the $10,000 note executed by his first and second wife, as part of the assets of the estate. There was added a prayer for partial distribution, in case a final settlement should be found impossible. There was nothing inconsistent in these prayers, nor was the bill thereby rendéred demurrable. Neither was it demurrable as a bill for final settlement, though it shotted upon its face that some of the notes, due the estate were uncollected, and one of them not-due.

It charged that the executor had converted the entire estate to his own use ; had embarked its assets in his private business ; had failed for three years to return an inventory or annual account; had refused to make partial distribution of thé large amount of money in his hands; and had made false, contradictory, and evasive statements to the legatees, of the condition of the estate, with the fraudulent design and purpose of forcing them to sell their interest to himself. Facts like these,; if-established, would justify the court in charging him with the entire assets of the estate, whether collected or not, and in decreeing a final settlement on that basis. Cole v. Lake, 27 Miss. 768; Allison v. Abrams, 40 Miss. 748.

Neither ivas the bill demurrable for improper joinder of-parties by reason of the makers of the $10,000 note being-made defendants. They were not necessary — but neither were they improper — parties.

The bill charged that said note constituted a part of the: assets of the estate, but averred that the makers of it, who were daughters of the testator, and successively wives of the executor, claimed that it had been-given only as evidencing an advancement made by the testator in his life-time, and that it was not intended to be obligatory, as imposing a debt upon the signers. Complainants charged that the last will and testament of the testator negatived the theory of an advancement, but that the makers of the note and the executors claimed that-the will supported such theory. Seeking, as the bill did, to-charge the note as assets of the estate against the executor, and thereby involving a construction of the will, it was not improper to join the makers of the note as defendants. They ■do not stand upon the footing of ordinary debtors. If the •executor was to be charged with the note, it was well for him ■that the makers of it should be joined, as parties, so that the •decision might be binding upon them. The demurrers were properly overruled.

The executor was incompetent, as a witness, to detail anything occurring between himself and the testator in the lifetime .of the latter. He was tenant by the curtesy of his de-. •ceased wife (one of the makers of the note) in the lands for which the note had been executed, and thereby directly interested in defeating its collection. Whether his wife had the legal capacity to execute the note or not, he could not hold the lands and refuse to pay it. The attempt by the bill was to ■charge him personally with' this note as assets which he had failed and refused to collect. He avers in his answer his willingness to pay it if it be held to be assets. Manifestly, then, be is an interested, and therefore incompetent, witness to show its invalidity, by testifying to matters occurring in the life-time of the testator. He was competent to testify in relation to the grave charges of fraud preferred against him by the bill, and supported by the testimony of his co-executor, but he failed to allude to them in his deposition.

We think that the language of the will, in relation to the $10,000 note, is too plain to admit of construction. It is awkwardly and ungrammatically expressed, and the sentence is written without punctuation marks, but it explicitly declares -that the note is to be paid, and that the makers of it shall receive no part of the estate, because, even after they have paid it, they will have received more than their share, by reason of the excess of value of the property, for which the note was executed, over the price to be paid. No punctuation marks, nor construction, can make the will speak any other moaning. To make it mean other than this is not to construe, but to destroy, the language. Neither does a careful consideration of all the competent proof taken with a view of ■throwing light upon the will satisfy us that the testator intended to convey a different meaning. Undoubtedly he was anxious to provide for his youngest daughter, Susan, but he -could not have intended to make her fully equal with the •other children, charging the others in full with what they had "theretofore received in slaves, because, by the same deed, an -equal amount of property was conveyed to Mary and to Susaii whereas the former had previously, been advanced $12,000 or $15,000 in excess of the latter. We think that the weight of the evidence points to the conclusion that the testator, who us shown to have been anxious to make provision for his youngest daughter, Susan, thought that, having a short time before given her cotton to the amount of $5,300, he satisfactorily accomplished his design in selling to her, for $5,000, a half-interest in a plantation worth $25,000, exclusive of the personal property given with it. Certainly this accords with the language of the will.

We think that no injustice, in any respect, was done the •executor by the decree below.

The cross-appeal presents for review the action of the court below in the allowance of commissions to the executor, the failure to hold him accountable for interest, and to charge him with the highest market value of certain railroad stock which lie had permitted to depreciate upon his hands, and the allowance to him of fees paid attorneys. It is insisted that there was proof of such fraudulent conduct on the part of the executor as should have deprived him of all commissions, and subjected him to compound interest at the highest legal rate. The charges of fraud contained in the unsworn bill, and denied by the sworn answer, are sustained only by a single witness. They cannot, therefore, be said to have been established.

While we do not think he should have been denied commissions, we think that he should have been charged with compound interest — that is to say, interest at six per cent, with annual rests, on all cash balances from the date of their accrual, -excluding the $24,000, which he is shown to have set apart and kept separate. The balance of the assets he mingled with and used as his own, and so far from its being true, as claimed; by him, that he always had money on .hand sufficient to respond, to all possible demands, it is shown that he was frequently over-checked in bank and with his commission merchants. It. is shown, also, that during his executorship he has bought' six plantations or tracts of land, aggregating more than $30,000 in the prices paid. The circumstances raise the strong presumption that they were bought, in part at least, with money of the estate, or with the profits which that money enabled him to make in his business, and bring him fully within the rule announced in Crowder v. Shackleford, 35 Miss. 324: “ Where a trustee uses the trust fund for his own benefit, and has made, or there is ground to infer that he has made, a profit, the cestui que trust may elect to take the profits, or the principal with compound interest.”

There is no denial here that the executor used the funds of' the estate as his own. The grounds for believing that he has made a profit by so doing are at least as strong as in the case of Crowder v. Shackleford, supra.

The refusal to charge him with the highest market price for the railroad stock was correct. He retained it under an honest mistake of judgment, shared in by many men of experience- and prudence.

With regard to the lawyer’s fees, we are left in doubt as to the nature of the services for which they were paid. The executor should be allowed credit for those only properly paid in prosecuting or defending suits by or against the estate, excepting those paid in this litigation.

Decree reversed at executor’s cost, and cause remanded, with* instructions that the account be restated in accordance with, the views here announced.