Magraw v. McGlynn (1864) · DecisionDepot

Magraw v. McGlynn

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Oct 15, 1864Published

Before: Currey, Sawyer

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Holding. The Probate Court has the authority to require an executor to specify the kind of currency received on behalf of an estate and to decree that a creditor's claim be paid in the specific kind of money (gold coin) held by the executor in a fiduciary capacity.

Issues

Whether a Probate Court has the authority to require an executor to specify the kind of currency received on behalf of an estate.
Whether a Probate Court may decree that a creditor's claim be paid in a specific kind of currency held by the executor.
Whether an executor's plea of tender in 'lawful money' is sufficient when the answer fails to specify which of multiple forms of lawful currency was offered.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The decree so made is a judicial determination of the rights of the parties, and possesses all the elements of a final judgment.”

Synopsis

Appeal from the Probate Court of the City and County of San Francisco.

Henry S. Magraw, the respondent, one of the creditors of the estate of D. 0. Broderick, deceased, presented his claim to the executor and the Probate Judge, and it was allowed August 2Sth, 1861. His claim was based upon the following promissory note, viz:

“ $10,500. New York, July 1st, 1858.

“ Ten months after date, I promise to pay to the order of A. Welch, at the ‘ Chemical Bank,’ ten thousand five hundred dollars, without defalcation, for value received.

“D. C. Broderick.

“Indorsed: Washington, December 22d, 1858.

“Received on the within, three thousand five hundred dollars. “ $3,500. “A. Welch.

“ Pay to the order of H. S. Magraw.

“A. Welch.”

The other facts are stated in the opinion of. the Court.

Opinion — Currey

By the Court, Currey, J. The executor of the last will and testament of the Honorable David C. Broderick, deceased, has appealed to this Court from an order and decree of the Probate Court of the City and County of San Francisco, requiring him to pay, in gold coin of the United States, the amount of a debt due the plaintiff from the estate of the deceased. Upon the petition of the plaintiff the executor was directed by an order of the Probate Court to render a full account and report of his administration, [427]showing- the amount of debts and liabilities approved, and allowed against the estate of the deceased; the expenses and charges of administration; the amount of all sales of real and personal property made by him, and the amount of moneys received, specifying the times when received and the kind of currency and coin received therefor by him; and it was further ordered that upon the coming in of the account and report the executor and the legatees, devisees and all persons interested in the estate of the deceased, should show cause why an order should not be made that all of the debts of the estate be paid. The executor appeared in obedience to this order and rendered his account, showing the amount of money received, and also the amount paid out, leaving in his hands a large sum of money belonging to the estate. The account so rendered did not specify the kind of money received by the executor, and for this reason the plaintiff, as a creditor of the estate, excepted to the account as insufficient, and objected to its allowance by the Court until the kind of money, which he alleged was gold coin, was specified and disclosed by the executor; and in conclusion, the plaintiff prayed the Court that the executor might be ordered and decreed to pay the debt due him in current gold coin of the United States. To the exceptions and objections so made the executor answered that his account was in all respects full and complete, and submitted that the creditor’s exceptions and objections were insufficient in law and should be denied and disallowed; and he also, on his part, objected that the Court had no jurisdiction or legal authority to require a specification of the kind of money which he had received on account of the estate. The executor, for further answer to the objections and exceptions of the plaintiff, alleged that the debt due him had been tendered to him in lawful money of the United States at the Chemical Bank in the City of Uew York, where the promissory note on which the same was due was made payable, and that the same was refused by the plaintiff; and he further averred that -the money remained deposited at said bank subject to the plaintiff’s order, as the amount due him. The

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Dissent — Sawyer

Sawyer, J., dissenting. D. C. Broderick, in his liftetime, was indebted to respondent upon an ordinary promissory note. Upon his decease the debt survived against the estate, and the full amount was tendered to the respondent by the administrator. The administrator represents the estate until it is settled up, the debts are paid, and the assets distributed. . Broderick was entitled to pay the debt in any money that the law makes a legal tender in the payment of debts. The death of Broderick did not place the respondent in any better position than he occupied during the lifetime of the deceased, and the estate was entitled to discharge the debt in any kind of money that Broderick would have been entitled to pay it in, were he alive. The administrator represents the estate and not the creditor. He is not in any just sense a trustee holding a specific piece of property, or any specific fund belonging to the respondent which he is entitled to receive in kind. Nor is he a trustee of the creditor in any sense other than that he has charge of the assets of the estate out of which the respondent is entitled to have his debt discharged. The respondent is merely a creditor of the estate, -and his demand is a debt, pure and simple, due from the estate and payable in any kind of. money made by law a legal tender in payment of debts. The creditor has no right to share in any profits or advantages gained by the estate arising from the management of its funds, no matter by what means they accrue. If the estate is solvent, he is entitled to [434]the full amount of his debt, but under no circumstances can he get more. He is not entitled to have any portion set off to him in kind. He is entitled to lawful money, such as is a legal tender in payment of all other debts, and when he obtains that his contract is satisfied according to its terms. His demand rests in contract, and his bond is fully satisfied. Can he ask more ? Upon what principle does he stand in a better position than those who are creditors of the living ?

So, also, a legatee of a specific sum, payable in money, would probably stand in the same position. When the debts are paid, he becomes a creditor of the estate to the amount of the sum bequeathed.

Residuary legatees and heirs, may, perhaps, occupy a different position, for after the debts of the estate, and all specific legacies are paid, the remainder of the estate itself is theirs. But if they do stand in a better position than creditors, it is because the estate itself is theirs, and the executor, or administrator, is simply its custodian, and is bound to turn it over to the real owners. He does not stand in the relation of debtor to the heirs and residuary legatees. He is simply custodian of the specific property of which they are the owners. The money and property itself remaining in his custody, after paying the debts and-specific legacies, belong to them, and are to be distributed in kind to the real parties entitled, under the direction of the Probate Court. But it is not necessary to determine the question as to heirs and residuary legatees at this time. They are only referred to, to show that their relation to the estate is entirely different from that of a mere contract creditor, and that there are reasons why they may be entitled to receive the specific property received by the executor, whether money or otherwise, that do not apply to creditors as such.

In my judgment there is nothing in this case to relieve it from the operation of the Act of Congress making treasury notes a legal tender in the payment of debts. It will be time enough to determine whether or not the last clause of section two hundred of the Practice Act, relating to the recovery of [435]moneys received in a fiduciary capacity, and to suits for moneys had and received to the use of another, irrespective of any express agreement to pay in a specific kind of money, is repugnant to the Act of Congress, when that question properly arises. In my opinion it does not arise in this case.

If, then, the Act of Congress is to govern contracts made before, as well as those made after its passage, the order directing the executor to pay the debt due respondent in gold coin is erroneous, and ought to be reversed. But the question as to the effect of the Act of Congress on antecedent contracts is pending in another case, which we are not yet prepared to decide, and as the majority of the Court decide this case on the assumption, adopted for the purpose, only, of their present decision, that the Act controls such antecedent contracts, I express no opinion upon the point at this time.

Mr. Chief Justice Sanderson expressed no opinion.

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Synopsis

Opinion — Currey

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Dissent — Sawyer

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