Gray v. Gaither ( 1876 )

PeabsoN, C. J.

When an executor is guilty of a devastavit by applying the funds of the estate to his own use, it is the duty of the court to appoint a receiver and take the estate out of his control.

In our case there is no allegation that the executor has misapplied the funds of the estate to his own use ; but the motion for a receiver is put on the ground that the estate is insecure in the hands of the executor by reason of the fact that he has sold his land and personal property and now has no. estate except what consists of money and notes, which can he easily, removed out of the jurisdiction of the court. When an executor becomes insolvent after his appointment, or his insolvency was not known to the testator, it is the duty of the court to require him to secure the fund by a sufficient bond. Otherwise when his insolvency is known to the testator — for it may be that he would rather confide in an insolvent man in whose honesty he has full confidence — than in one whose solvency is not doubted.

So, when an executor is a non-resident, so that the court can take no personal control over him, he is required to give security. So when an executor converts his real and personal estate into money and notes, so as to lead to a reasonable apprehension that the assets are not sufficiently secured, as is found to be the fact in this case, it becomes the duty of the court, pending an action for an account, and payment of the assets, by an order in the action, to provide for the security of the fund. Thus far, we agree with liis Honor, but the doctrine of the court only justifies an order for the protection of ¡the assets against tliis apprehended danger in the first instance, and does not justify an order for the appointment of a receiver, as in case of a' dereliction of duty on the part of the executor in direct reference to his management of the estatp.

There is error. This opinion will be certified to the end that an interlocutory order may be made in the court below, requiring the executor to give bond, &c., for the protection of the assets, and to perform the final decree in the causo, and in case he fails to give such bond, that a receiver may be appointed.

Pee Cueiam. Judgment accordingly. ,