Phillips v. Phillips , 18 Mont. 305 ( 1896 )

Hunt, J.

Mrs. Phillips is suing herself, her contention being that under our statutes she may personally bring an action for moneys alleged to be due to her as an individual against herself acting in her trust capacity. But how can a party be legally interested in each side of a question ? How can Mrs. Phillips verify her complaint that the moneys she has sued for are due, and that the amounts are reasonable, and consistently resist payment thereof by verifying an answer to the effect that the claims are not due, and are not reasonable, if such be the case ? Manifestly, on. principle, the law will not permit a party to be both plaintiff and defendant in an action. Chit. Pl. *17.

Mrs. Phillips, in her capacity as executrix, is a trustee for heirs, legatees, and devisees, and her duty was not to enter into any relation, or to do any act, not consistent with the interests of the beneficiaries of her trust. As executrix her relation was a confidential one. Her duty, therefore, was undivided to her beneficiaries, and she could not put herself in the conflicting attitude of a plaintiff suing herself as a defendant, and thus subject herself to the temptation of acting contrary to the best interests of the legatees, her cestuis que trustent. (Pomeroy’s Eq. Jur. § 1077; Byrne v. Byrne, 94 Cal. 576, 29 Pac. 1115, and 30 Pac. 196.)

We are unable to agree with the appellant that these general principles just stated are relaxed by section 167 of the probate practice act (Comp. St. 1887, 2d div.), which provides: “If the executor or administrator is a creditor of the decedent, his claim, duly authenticated by affidavits, must be presented for allowance or rejection to the probate judge, and its allowance by the judge is sufficient evidence of its correctness; and it must be paid as other claims, in due course of administration. If, however, the probate judge rejects the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the probate judge, who may appoint an attorney at the expense of the estate to defend the action. If the claimant recovers no judgment, he must pay all costs, including defendant’s fees.”.

The statute must be read as it is. It enables an administrator to collect a claim if tbe decedent was his debtor, but makes no provision for the presentation of claims paid by an administrator or executor after death and in the course of administration. It cannot be construed in a manner to allow this action to stand, without countenancing rules in conflict with principles essential to the safety and preservation of the estates of decedents.

The views here expressed are alike applicable to both causes of action stated in the complaint, and lead to an affirmance of the judgment.

Plaintiff must have had,. and possibly may yet have, some means of obtaining reimbursement from the estate for a reasonable outlay in the funeral expenses of her husband. But it would seem to lie in the accounting and appeal from the order of the court disallowing her claim. (Comp. St. 1887, 2d div. § 445; Redfield’s Law and Practice of Surrogate Courts, p. 439.) In good conscience she should be allowed what is reasonable, particularly if the- exigencies of the case were such that to obtain a place of interment an advance of money was made by her individually.

It would also seem that under the statutes her remedy for the refusal of the court to make her an allowance was by appeal. But she cannot maintain this action. Judgment affirmed.

Affirmed.

PembertoN, C. J., concurs. DeWitt, J., not sitting.