In re the Estate of Besley , 18 Wis. 451 ( 1864 )

By the Court,

Dixoít, C. J.

James G. Besley was not only tbe executor of tbe will, and charged with all tbe duties appertaining to that office, but be was also legatee in trust, with tbe peculiar duties prescribed in tbe will. Tbe duties thus specially imposed were of a delicate and responsible character, and quite distinct from those usually devolved on tbe office of executor. That they were in a great measure discretionary and personal, and not official, hardly admits of doubt. “ I give and devise all my real and personal estate of what nature or kind soever, except tbe above mentioned note, to my son James G. Besley, sole executor of this my last will and testament, witb power to dispose of. tbe same in such manner as to him shall seem meet, for tbe payment of my just- debts and for tbe use and benefit of my only and afflicted daughter, Gertrude Besley, so long as she shall remain insane,” &c., is tbe language of tbe testator. It appears that there were no-debts of tbe testator remaining unsatisfied at tbe time of tbe death of tbe executor and trustee, James G. Besley, and consequently that all of tbe estate not then disposed of belonged to tbe fund thus specially bequeathed in trust. Gertrude Besley is still living and insane. Under these circumstances we have no bestitation in saying that tbe appellant, Oliver Besley, is not entitled to tbe possession of any part of the estate by virtue of bis appointment as administrator witb tbe will annexed. As such administrator be does not succeed to tbe rights and duties of James G. Besley as trustee under tbe will. The rule that-powers and duties thus confidentially reposed, and not connected witb tbe office of executor, do not pass to the administrator witb tbe will annexed, has been acted upon in cases too numerous to be quoted. Conklin v. Egertons’ Adm’rs, 21 Wend., 430; Knight v. Loomis, 30 Maine, 204; Ross v. Barclay, 18 Pa. St., 179; Dominick v. Michael, 4 Sandf., 374; Beekman v. Bonsor, 23 N. Y., 303.

Nor has tbe statute (sec. 11, ch. 98, R. S.,) which provides that “ administrators with tbe will annexed shall have the same authority to perform every act, and discharge every trust, as tbe executor named in the will would have had, and their acts shall be as valid and effectual for every purpose,” changed tbe law upon this subject. Tbe acts and trusts here spoken of must be understood as those pertaining to tbe office of executor. Tbe same observation is applicable to those provisions of statute cited by counsel for the appellant. In New York there exists a like statutory provision, by which it is enacted that “in all cases where letters of administration witb the will annexed shall be granted, tbe will of the deceased shall be observed and performed ; and tbe administrators witb such wills shall have the same rights and powers, and be subject to the same duties, as if they had been named executors in such wills.” This statute has been held not to have introduced any new principle of law. Beekman v. Bonsor, and Dominick v. Michael, supra.

The suggestion of the appellant’s counsel that as, in this case, the bequest was made to.James G-. Besley, “sole executor of this my last will and testament,” it is distinguishable from the other cases, merits perhaps some observation. It will be found on examining the cases that in most, if not all of them, the same or an equivalent form of expression was used in the creation of special trusts. The terms “sole executor,” “executor aforesaid” or “ hereinafter named,” are regarded as descriptive of the person of the trustee, and not as implying that the testator intended to annex to the office of executor any powers or duties which by law do not belong to it.

Judgment affirmed.