Appeal of Weldy

Mr. Justice Gordon

delivered the opinion of the court, April 16th 1883.

We cannot at all agree to adopt the result reached, in the case in hand, by the Auditor and court below. Not only are wrong conclusions drawn from the facts presented, but in one important particular the facts do not support the finding. It may be, and doubtless is true, that Mrs. Weldy did not claim the interest due her, on the fund created by her mother’s will from Henry A. Seyfert, during his life, and it may also be taken for true, that she presented no claim against his estate therefor for nearly seven years after his death. But neither of these things have any special significance. That she did not make such claim upon Hemy, during his lifetime, is explained by the fact that the interest was regularly paid to her by his co-executor and trustee, William M. Seyfert, and that she did not so continue to receive it is accounted for by the insolvency of the latter in 1880. It is altogether probable that she knew of the disposition which Henry and William had made of the trust fund as between themselves, but as long as she continued to receive from the latter what the will gave her, she was not dispose to interfere with their arrangements. And why should she, so long as she got what belonged to her ? It was understood all around that she had but a life estate in the corpus of the trust, and as long as she got her share of its product it was of no consequence by whose hands she received it. So as long as she had any expectation of a continuation of its receipt from William, she was not inclined to claim it from Henry’s estate. But when by William’s insolvency iu 1880, and the vacation of his letters testamentary, all hope of payment from that source was cut off, she must, per force of circumstances, either turn to the estate of the co-trustee, or abandon her legacy altogether. But as Mrs. Weldy was no party to the arrangement by which the trust fund was divided between the executors ; as her con-' sent to that arrangement was never so much as asked for, we cannot see how she could be estopped by her mere acquiescence in a matter which belonged exclusively to the trustees.

Her neglect in this particular could certainly involve her in a consequence no more serious th. n the risk of the possible insolvency of both the executors.’

But the Auditor finds that Mrs. Weldy’s claim was settled in an arrangement made with William M. Seyfert, about the time of his insolvency. Tire testimony, however, supports no such finding. Were there any evidence to support such a conclusion, we would hesitate to disturb it, for the rule is to treat the findings of an Auditor as prima facie correct, but there is here, in fact, no such evidence. It is true, Judge Eloock says, he had repeated conversations with Mrs. Weldy about the whole indebtedness of William Seyfert to her, and that she told him what she had received in payment thereof. Thatit was two or three houses and lots in Philadelphia, a mortgage of §5,000 on some land near Point Breeze, which he thought, she had afterwards collected, and a nine or ten thousand dollar mortgage on some ore property in Hartford county, Maryland. Part of this, he says, she regarded as worthless, “but that William Seyfert regarded it as of so much importance that he was exceedingly anxious to get an agreement from her that she would pay back whatever was realized over and above her indebtedness.”

But there can be no pretence that a transaction of this magnitude involved but the settlement of the interest on $1,254 for four or five years. This sum might have been included in it, but it certainly could not have been confined to it. The same witness, however, says that he was impressed with the fact that William Seyfert owed her a considerable amount of money, but that in all the conversations he had with her, she said nothing about the claim now in controversy. Where, then, is the evidence that this claim was so settled % There not only is no such evidence, but, on the contrary, William M. Seyfert swears that Mrs. Weldy was not paid by him. We therefore, necessarily conclude that the Auditor’s finding, in this particular, is wholly without that foundation of testimony which is requisite for its support.

But it is urged that Henry A. Seyfert was not responsible for the mismanagement and loss of the trust fund by his co-executor. We, however, think the authorities do not support the position thus assumed.

The testatrix, by her will, directed that the share, inter alia, of Jane Stevenson (now Weldy), should remain in the hands of her executors, and be by them put out at interest, and that that interest should be paid yearly to the said Jane for and during the period of her natural life.

But instead of complying with this testamentary direction to properly invest the fund thus committed to their charge, the executors, by an agreement in writing, resolved to divide the whole fund between themselves, so that Henry should retain thereof $3,763.48, the shares of Simon and Joseph Seyfert, and Catharine Fox, and that William should retain a like sum, the shares of Caroline McManus, Mary Jane Stevenson (Weldy) and Charles Minor.

Now, whilst there may have been no very serious impropriety in this conclusion of these trustees to retain and use the trust fund, yet we think a little reflection will make it obvious to any one, that having thus determined to invest it, it was then-duty to see that it was properly secured, and that, not having so done, they ought to be held as sureties for one another.

It may be admitted, as ruled in Verner’s Estate, 6 Watts 250, on the authority of Brown’s Appeal, 1 Dall. 311, and McNair’s Appeal, 4 Rawle 148, that an executor, who has received money of the estate and has paid it over to his co-executor, is not answerable to legatees for the loss of it in consequence of his insolvency. For this rule some color of reason may be found in that as the testator entrusted the whole of his estate to his executors without security, so they, in turn, may trust each other. It is, however, somewhat difficult to understand why this rule should apply in the case of legatees only, and not to creditors. Nevertheless, such is the decision in Brown’s Appeal, and the reason for it, as there given, is, that as the legatees as well as the executors are appointed by the will, therefore the former cannot impose upon the latter the same responsibility as that existing in favor of creditors. This may be a very good reason for this rule, though we confess our inability to see it. Nor, in this, are we singular, for Mr. Justice Huston, in Sterrett’s Appeal, 2 P. & W. 4.19, utterly refuses to subscribe to a doctrine of this kind. But we are not disposed to attempt to reconcile the differences of the decisions upon a subject of which Chief Justice Gibson says there has been more inconsistencies among English authorities on this head than any other, and on which, as Justice Woodward has intimated, in Irwin’s Appeal, 11 Ca. 294, our Pennsylvania cases are by no means harmonious. The case in hand stands upon a footing essentially different from that occupied by those cases which have given rise to the conflict among the authorities cited. For, however it may be as to the responsibility of one executor who has passed the money of the estate over to his co-executor, there is now, and never has been, any difference of opinion as to their joint responsibility for a loss resulting from their joint negligence. As to this, Weigand’s Appeal, 4 Ca. 471, is full in point, and the same doctrine is recognized in Hall v. Boyd, 6 Barr 270, and in Irwin’s Appeal, 11 Ca. 294. We can, therefore, without hesitation, say, that as the executors, in this case,- disobeyed the injunction of the will which required them to invest the fund committed to their charge, so that the cestuis que trust might have the benefit of the interest thereof during their several lives, and instead thereof, and without security, divided that fund between themselves, there was such a neglect of a joint duty as rendered them liable, the one for the other, for any loss or misapplication of that fund, or any part of it.

It follows, that the court below should have ordered the payment, to Mrs. Jane Weldy, of the interest due and unpaid to her on the sum of $1,254.49, from the estate of Henry A. Seyfert, and also the payment to Catharine Fox, administratrix de bonis non cum testamento annexo of the estate of Mrs. Elizabeth Seyfert, of the said principal sum, to be by her invested for the uses and purposes mentioned and directed in and by the will of said decedent.

The decree of the Orphans’ Court, as to the items indicated, is now reversed and set aside at the costs of the appellees, and it is ordered that distribution be made according to the directions contained in the foregoing opinion.