Pennington v. L'Hommedieu

The Chancellor.

Samuel Fowler, deceased, died Feb. 26, 1843, leaving a will, dated Dec. 4,1842, by which, (after giving divers pecuniary and specific legacies, and devising certain of his real estate, and directing the payment of certain annuities out of his personal estate, and which he charged upon the residue of his real estate not specifically devised, in case of a want of personal estate, and authorizing his executors in that case to sell or set apart for such payment such part of the said residue of his real estate as they should deem proper,) bequeathed and devised as follows: ££ Item, I give and bequeath unto my executors whatever sum or sums of money may, at the time of my decease, be due to mo from Bigelow, Canfield & In-graham, or from any individual of that firm, in trust and to and for the exclusive use and benefit of my daughter Julia, to bo paid upon her own order and receipt. Item, all the rest and residue of my estate, real and personal, I give, devise and bequeath unto my sons Samuel, Henry Ogden, Robert Ogden and John, and my daughters Julia, Mary, Estelle, Rebecca and Clarinda, to be equally divided between them, share and share alike.”

Julia, one of the daughters, had, in Feb. 1836, intermarried with Moses Bigelow.

After the doath of the testator, and on the 7th May, 1844, by an indenture between the said Moses Bigelow and Julia his wife, of the first part, and Samuel H. Pennington, of the second part, reciting the said will, the said Moses Bigelow and his said wife conveyed to the said Samuel H. Pennington all the interest, property, claim and demand of the said parties of the first part, or either of them, under the said will, in trust, to pay and transfer the moneys, securities, &c., to such person, for such purposes and in such manner as the said Julia, notwithstanding her coverture, should, hy writing under seal attested hy two witnesses, or hy will direct; and in default of and until such direction, and so far as any such direction shall not extend, in trust to invest, &c.; and, during the joint lives of the said Moses and Julia, pay the interest and annual produce of the trust moneys and securities into the proper hands of the said Julia, or to such person and for such purposes as the said Julia shall, hy writing, from time to time direct, for the sole and separate use of the said Julia; and if the said Julia shall survive-the said Moses, to pay and transfer the said moneys and securities unappointed and undisposed of to the said Julia; but if the said Moses shall survive the said Julia, then to pay the interest and annual produce of the said moneys and securities to the said Moses or such person and for such purpose as he shall, hy writing, from time to time direct; hut not hy way of anticipation; and after the death of the said Moses and Julia, or the survivor of them, to pay and transfer the said moneys and securities to such person or persons as would, under the statutes for the distribution of the estates of intestates, he entitled to the pei-sonal estate of the said Julia.

On the 20th Sept. 1845, the said Samuel H. Pennington, trustee as aforesaid, exhibited his hill against Elias L’Hommedieu and Samuel Fowler, (the latter being one of the children and devisees and residuary legatees under the will of the said Samuel Fowler, deceased,) the acting executors of the will of Samuel Fowler, deceased, for an account of the personal estate of the said testator, and for the distributive share of the said Julia thereof under the said will.

The answers of the executors, filed April 9, 1846, admit, that the defendant Samuel Fowler possessed himself of so much of the personal estate as came to his knowledge within the State of New Jersey, a true and perfect inventory whereof, the answer says, is now nearly completed, amounting to $40,000 ; and they set up, in defense, a release, dated May 13, 1844, executed by the said Moses and his said wife, by which they acknowledge to have received from Elias L’Hommedieu and Samuel Fowler, acting executors &c., $700 in full payment and satisfaction of all legacy and legacies, distributive share and shares of the personal estate of said testator to which they or either of them are or is or may be entitled by law under the will of the said testator, except the bequest in said will whereby the testator bequeathed to said executors whatever money might, at his death, be due to him from Bigelow, Canfield & Ingraham, or from any of the individuals of that firm, in trust to and for the exclusive use and benefit of his said daughter Julia.

No inventory of the personal estate of the testator was shown to Bigelow and wife, or either of them, at or before the execution of the said release; nor has any inventory of the Avhole personal estate of the testator yet been made; nor have the defendants informed the court by their answers what is the true amount of such personal estate to be distributed under the residuary clause in the said will. But sufficient appears from the answers and proofs in the cause to show that the distributive share of the said Julia under the said residuary clause would be $4,500 or more.

If nothing more than this appeared in the case, it could not be gravely contended that the release would be a bar. The court would presume, either that both parties, the executors and Bigelow and wife, were under a misapprehension as to the amount of the personal estate, or that Bigelow and wife wore under such misapprehension and that the executors omitted to inform them of the amount thereof; either of which presumptions would be a sufficient ground on which to declare the release inoperative.

The foregoing view gives the simple result of the transaction between the executors and Bigelow and wife. A distributive share worth $4,500 was released for $700.

It may readily be anticipated that the executors would not have proposed or received a proposition for such a settlement for this distributive share, or attempted to sustain it before the court, without laying before the court some circumstances on 'Which they acted in making or acceding to a proposition for a •settlement on such terms, and on which to contend for the validity of the release.

The grounds laid before us by the executors on which they -contend that the release is valid, are, first, that, after the death -of the testator, a paper in his own handwriting was found in the words and figures following: “ This is a codicil to be added to the last will and testament of me, Samuel Fowler, which bears date on or about the 4th of December, 1842 — 1st, I do hereby ratify and confirm my said will in all respects-- so far as any part thereof shall be revoked, altered or addition thereto by ijhis present codicil, and first, the first bequest in said will made to my wife Rebecca, wherein I have bequeathed to her so much of my household furniture as she may require for her own use, it is my will and intention to alter and revoke the same so far in this codicil as to say that I give and bequeath to her so much of my household furniture as she may require for her own use and so much as may be required for the use of our children that may wish to reside with her, and at her decease all .the aforesaid furniture to be equally divided among my four daughters, Julia, Estelle, Rebecca and Clarinda. In the last bequest in the aforesaid will, I hereby revoke that part of the same so far as relates to my daughter Julia.” (This paper was not signed, nor was any concluding clause added to it: it was found in just the shape above given.) That the executors submitted this paper to the Surrogate of Sussex for probate. That the said Surrogate declined admitting it to probate. That the executors proved the will. That the executors took steps for the purpose of submitting to the Orphans’ Court of Sussex and of contending before that court that the said paper should be admitted to probate as a codicil. •• -That while matters stood in this position the negotia-' tion between the executors, or Samuel Fowler, one of the executors, and" Bigelow in reference to the share of Bigelow’s wife was going on; and that the hearing before the Orphans’ Court was several times postponed in view of the said negotiation. That the said Samuel Fowler contended that the said paper was a codicil, and that the negotiation with Bigelow was concluded and assented to by Bigelow on the ground of the doubt existing whether this paper was or was not a codicil. That after the negotiation with Bigelow was concluded and the release of him and his wife was obtained, it was thought by the said Samuel Fowler and the other members of the family that it was not worthwhile to proceed further in the matter of the said paper, and the question whether it could be admitted to probate was never submitted to the said Orphans’ Court.

The next ground on which the executors contend that the release is valid is, that the executors claimed that certain promissory notes made by third persons to Bigelow, or to Bigelow, Can-field & Ingraham, which had been assigned to the testator in his lifetime, and which Bigelow claimed were assigned by him as collateral security for the debt of Bigelow or said firm to the testator, wore not collaterals, and would not go to Bigelow’s wife as incident to the principal debt bequeathed to her, nor to the said Bigelow, but were absolutely a part of the assets of the testator’s estate, unconnected with the said debt and independent thereof; and that the consent of the executors to assign these promissory notes to some person for the use of Bigelow and wife, or one of them, and their assignment of the same accordingly, was a part of the consideration of the release.

As to the nature of the paper spoken of as a codicil, if the executors were sincere in their claim that it was a codicil, it was their duty to proceed to submit the question of probate to the proper tribunal. If it was a codicil it cut off Julia entirely from any share in the residue of the personal estate; and they were out of the line of their duty in offering Bigelow anything for his wife’s share of the personal estate. Several of the distributees under the residuary clause were minors. If they thought it a codicil they were guilty of a breach of duty and of trust in not submitting it for probate without any reference tov^affa; to negotiate with Bigelow; and are in breacl"^ty anct trust yet in omitting to submit it for probate. Executors cannot-, be allowed to claim a paper to be a codicil cutting;ioMfehare,5 and postpone from time to time the hearing upon tlfe quesrit^,".^oiler so much for the share and give it, and thenWmt to submit the question of probate to the court. They are n^F-aB^jhtfrty thus to speculate, either for themselves or the other distributees, on the fears of the person (a child in this case, or the husband of a child,) to be affected by the paper if it be a codicil, and, on effecting an arrangement with such person, omit to offer it for probate, and go on and settle the estate under the will which gives to such person a full share of the residue. To sanction such a proceeding would be to sanction a breach of duty in executors, and to open a door, for all manner of practices by executors or claimants under a will. No higher duty rests on this court than that of insisting upon a plain, direct and faithful performance of' the trust reposed in executors.

As to the matter of the collaterals before mentioned, no such consideration appears in the release; and it does not appear that, they were inventoried as a part of the #40,000. Again, I think it clear that they were collaterals.

It is manifest that the executors in their negotiation with Bigelow insisted on these two claims or grounds : that these notes were absolutely a part of the assets of the estate; and that the said paper was a codicil; and by means of these insistments reached the result of the negotiation with Bigelow. Now, if these notes were made a part of the assets of the estate, what right had they to give them to Bigelow ? The other distributees were entitled to their shares of them. In assigning them they yielded to Bigelow’s claim that they were but collaterals. If the insistments of the executors were correct, Julia was not entitled to $1 of the personal estate, nor she nor Bigelow to #1 of these collaterals. What right had the executors to say they would give Bigelow the notes, though they claimed they were assets of the estate, and give him #700 besides, though they thought he was not entitled to #11

It seems plain to me that the course taken by the executors ghows that these claims and insistments were insincerely made for the purpose of cutting off Bigelow and wife with as little as possible. I. cannot conceive that an executor having no interest himself in the residue could have adopted such a course. And this transaction can be regarded by the court only as a transaction by Samuel Fowler in his character of executor. He was not at liberty to set up such claims and objections as he made to* Bigelow, in his character of executor, with a view to enlarge his share of the residue as an individual.

I am clearly of opinion that the release should he declared void, and that the executors must account to the complainant for Julia’s share of the residue of the personal estate.

As to the guardianship, of which an account is sought by the bill, the facts are these : Jacob S. Thompson died January 1, 1832, intestate, seized and possessed of real and personal estate of which Julia, daughter of the testator, Samuel Fowler, was entitled to one fifth, as a niece of the said Thompson. Of this property the testator took possession in the character of guardian of his said daughter Julia, she being then a minor.

On the 8th of Feb., 1833, the testator received from the administrator of the personal estate of Thompson in Pennsylvania $1,315, and gave a receipt therefor acknowledging the receipt of it as guardian of the said Julia. Julia’s share of Thompson’s real estate was set off to her in severalty, in March, 1832. The testator rented parts of this real estate so assigned to Julia and received the rents. Julia came of age February 17,1834 ; and was married February 4, 1836. It does not appear that the testator took out letters of guardianship.

The answer admits that the testator acted as guardian, of the person and estate of Julia; and sets up that, by the testator’s books of account, it appears that the testator has charged Julia, with divers sums of money, amounting to $3,176 28, and showing a large balance against her. That from the knowledge the executor who answers as to this part of the case has of the transactions of the testator as to the property of Julia, and from the understanding in the family while she lived there, before her marriage, and from conversations between the testator and Julia, he believes that the whole amount of money received by the testator for Julia was paid out to her and for her use; and that he heard the testator on one occasion say to Julia that she was spending too much money, and had already spent more than was due her ; and that on another occasion Julia told him that the testator would not let her have as much money as she wanted, and had told her that she had spent all the money that he had received for her from the estate of Thompson. That this defendant verily believes that when Julia left the testator’s house after her marriage she was largely indebted to him for moneys paid to her and for her use, and that it was so understood by her and her husband. That this defendant is informed and believes that Julia, after her marriage, was the constant object of the bounty of the testator, and that he paid to and for her, and to her husband on her account, divers large sums, and gave to her and her husband, soon after her marriage, and up to time of his death, the possession of a large and valuable farm in Warren county, and suffered them to receive the rents and profits thereof. That, from letters of Julia’s husband addressed to the testator and sundry accounts and statements in the handwriting of the testator it appears, and this defendant believes, that the testator paid and advanced large sums to Julia’s husband, partly for his individual use and partly for the use of Bigelow, Canfield & Ingraham ; but, as this defendant believes, all at the particular request of Bigelow, and to assist him in his business. That the testator, by his will, devised a tract of land of 28 acres, with valuable buildings and improvements thereon in trust for the said Julia during her life, and after her death to her children 5 and did also give and bequeath unto his executors whatever sum should at his death be due to him from the firm of Bigelow, Can-field & Ingraham, or from any individual of that firm, in trust to and for the exclusive use and benefit of the said Julia, to be paid upon her own order and receipt, and did also give and devise to the said Julia, in fee, the equal undivided eighth part of his real estate not before devised, and that the value of the real estate so devised to the said Julia1 greatly exceeded the whole amount of money the testator received or ought to have received as the guardian of the said Julia; and that the amount of the money due the testator, at the time of his death, from Bigelow, Canfield & Ingraham and some of the individuals of that firm also greatly exceeded any sum which the testator received or ought to have received as the guardian of the said Julia; and that the securities for the said debts have been and were paid ■■and transferred to the complainant, before the filing of the complainant’s bill, upon the order and receipt of the said Julia. And this defendant submits that the said devises and bequests are and should be taken in satisfaction of any demand which the ■said Julia might have had against the testator in his lifetime ; and that neither the said Julia nor any person on her behalf have any right against the executors of the said testator to have any account of the said guardianship.

The books of account of the testator have not been produced in evidence ; so that we are in the dark as to when the charges against Julia therein commenced, or what is the nature of the said account or charges therein, and whether the same kind of account was not kept against the other children. The belief of the defendant and the conversations spoken of by him furnish no reasons why an account of the guardianship should not be given. As to the other statements of the answer upon which it is submitted that the devises and bequests therein mentioned should be held to be satisfaction of any demand of Julia on account of said guardianship, the court may be able to form a better judgment as to that when the account of the guardianship shall be taken.

An account of the guardianship will be directed, reserving the consideration of the question whether, from anything done by the testator for Julia or paid by him to her, or from the devises and bequests made to her in the will, or both, the guardianship liability should be considered satisfied ; with liberty to both parties to take testimony in reference to this matter.

Lapse of time was mentioned in argument as a reason why an account of this guardianship should not now be called for. It was said that the testator was not strictly a guardian; that he never took out letters of guardianship; and that he is only to be considered as an ordinary debtor for any moneys he may have received for his daughter. I cannot concur in this view. He professed to act and did act as guardian of the estate, and received moneys expressly in that character and receipted for them in that character.

It is not a case in which the statute of limitations wouuld be a defense, or in which a defense on principles analagous to the statute would be maintained, if the statute or lapse of time had been distinctly set up as a defense in the answer. But this was not done.

It will be referred to a Master to take both accounts.

Order accordingly.