McLean's Executors v. Wade , 53 Pa. 146 ( 1865 )

The opinion of the court was delivered, by

Thompson, J.

The acts and admissions of the defendant’s testator, it seems to us, were quite sufficient to justify the finding of the jury that he had taken upon himself to act in the capacity of agent or bailiff, in regard' to the estate of his infant granddaughter, the meritorious plaintiff below. His declarations go to show that he undertook the relation at the request of his son, when the latter was on his death-bed ; and he admitted it at all times afterwards, both by acts and declarations. The cestui que trust, the granddaughter and her husband, affirm the relation by instituting this action of account render to adjust the accounts growing out of the relation. I see not, therefore, upon what principle his personal representatives can be heard to assert a different relation, and that their testator must be regarded as an executor de son tort, an unauthorized intermeddler with his son’s estate. As will be seen, we think, there was evidence to establish the relation of trustee and cestui que trust, and that the law will sustain the remedy adopted under it.

The jurisdiction of the Orphans’ Court is not exclusive of common-law remedies against the estates of decedents. They are not often resorted to, nor needed, but they exist, as we held in Sergeant’s Executors v. Ewing, 6 Casey 75, where an action to recover a judgment for a debt against the executors was held not to be excluded by the Orphans’ Court’s jurisdiction of the accounts of the personal representatives. The action here is a proper one between principal and trustee or bailiff and receiver, and why may it not be resorted to as between the legal representatives of the agent and his principal ? It deprives neither party of any right, nor gives advantage to either over the other. Its powers admit of the fullest investigation of the accounts between the parties, and it may admit of some doubt if the remedy would or could be so ample in such a case in the Orphans’ Court. But this need not be insisted on in order to sustain this action. It is enough to hold that it is not excluded by the jurisdiction of the Orphans’ Court. The testator undoubtedly received and managed the property and moneys of the estate of his deceased son as agent for his granddaughter, without administering. This he might do if creditors did not interfere, and in process of doing so, for a long period of years, accounts would necessarily have to bo kept and finally settled with the party for whom he assumed to act, and for that purpose this suit was instituted, and we think the learned judge was right in overruling the objection to it interposed by the executors.

We have another question, and that involves the plaintiffs’ right to sue in their own names without administration in a ease circumstanced as this is. Undoubtedly the estate of a decedent descends to his heirs at his death, subject to the claims of creditors and the laws in force for administering it. But if there be no debts and no distribution needed, and only a solitary heir, administration would seem to be useless. In this case I see no reason why the heir may not assert her rights. Indeed, this point was decided in Lee v. Wright, 14 S. & R. 105, and in Same v. Same, 1 Rawle 149. This suit was instituted by the heir some twenty-six years after the death of her father. After such a lapse of time, and in the absence of any evidence to countervail it, there is a conclusive presumption of the payment of every species of debt which might have existed against the estate of her father at his decease. This being so, the authorities cited seem to settle 'the point in favor of the maintenance of this action, there being no creditors.

Nor do we discover any error in the answer of the learned judge to the defendant’s 9th point. Only the rents received expressly for the use of the heir, and mixed with other money of hers, are included in the suit. The title to the realty was not in question. The difficulty in the way of her claiming the rents, conceding the want of title to the land, is easily answered. The only person in the whole' world who had the right to dispose of them as he pleased was the defendant’s testator, and he chose to consider them part of her estate, mixed them with her other moneys, and invested the whole for her use in the name of the “ heirs” of her deceased father, she being the only one. He had his reasons for this, no doubt beyond even the feelings of natural love and affection. He had made a parol gift of the land to his son, or at least put him into possession of it, and he held and improved it with the understanding that his father would give it to him ; and clearly intimated the same design towards his granddaughter for a long time ; eventually, however, he made a different disposition, and a different provision for her, but he never attempted to recall his investments in this or any other particular, made for her with what he admitted was her money. If this was not sufficient, and it was necessary, in order to sustain this portion of the claim, it might be done on the principle of an executed gift in her favor; for the securities taken in making the investments were in the names of the “ heirs” of John McLean, deceased, and she, as already said, was the sole heir. It is more probable, however, that they were collected and invested under the original .idea that they issued out of an estate that was destined for her. However this might have been, the executors, we think, ought not to be heard to gainsay what was deliberately done by their testator, especially as creditors were not complaining in regard to the matter, even if they might do so. There was no error in this part of the case, we think.

Something was said about the necessity of joining the representatives of the widow as plaintiffs in -the action. We need look no further for an answer to this objection, than that no one claims anything on account of her. Besides, it appears that the defendant’s testator paid off her interest in the estate in 1887, and took her receipt in full.

The last objection to be noticed regards the regularity of the judgment. There was no formal judgment of quod computet entered before the assessment of the damages. We think that under the Act of the 4th of April 1831, a formal judgment of quod computet was not indispensable. It provides that when an action in account render is being tried before a jury, and they find a liability to account, they may assess the damages, or, in other words, settle the accounts between the parties, and find in favor of one or the other of them, as they may conclude from the evidence to be right. In such proceeding the substance of the judgment quod computet is impliedly embraced in the general finding: McFadden v. Erwin, 2 Wh. 37. There is no error in this part of the ease, nor do we discover anything to correct in any of the numerous matters claimed to be error, or that needs any further special notice.

Judgment affirmed.