In re Estate of Stott
Synopsis
Order of Probate Court. — An order of the Probate Court from which an appeal can be taken is to be treated as final, and is conclusive of the matter therein determined.
Idem.—If such order is one settling the account of an executor, it is conclusive of the amount with which he was then chargeable.
Settling Accounts of an Executor. — If an executor mingles the funds of the estate with his own, or with the funds of a firm with which he is connected, the presumption is that such funds were used in his own business, or that of the firm, and the law makes him responsible for jiresumed profits upon the funds thus mingled, and he will be charged with legal interest, with annual rests, although there was no evidence of actual fraud.
The final account, settled May 13th, 1869, and unappealed from, was conclusive, and no testimony was admissible touching the moneys of the estate previous to said date. (Probate Act, sec. 237, Code C. P. sec. 1637; lihoad’s Appeal, 3 Wright, 186 ; Shind’s Appeal, 7 P. F. Smith, 45; Jacot v. Emmet, 11 Paige, 142; Mix, Admr. v. Heirs of Smith, 8 Vt. 365; Jennison v. Hapgood, 7 Pick. 1; Blount v. Darrach, 4 Wash. C. C. 657.)
While in certain specified cases Courts of Equity have exercised their authority to decree the jiayment of interest by executors, these cases have been almost uniformly where the executors have used the funds and made profit therefrom.
That power does not exist in the Probate Court, and the facts of this case would not in any event justify the exercise of it.
Interest is not chargeable where, as is said in Jacot v. Emmett, 11 Paige, 145, “ the money was kept in bank, or otherwise ready to be paid over, when called for.” (Easier v. Easier, 1 Bradf. 252.)
“ No trustee will in general be held responsible for interest upon the trust fund unless he has actually received it.” (2 Redfield on Wills, 888; Stearns v. Brown, 1 Pick. 530; Lamb v. Lamb, 11 Ibid. 371; Wyman v. Hubbard, 13 Mass. 332; Stevens v. Baninger, 13 Wend. 641.)
Compound interest is not chargeable in this State, except when there is an express contract in writing. ( Crosby v. MoEermott, 7 Cal. 148; Montgomery v. Tutt, 11 Ibid. 316; Loe v. Vallejo, 29 Ibid. 392; Estate of Den, 35 Ibid. 694.)
It is expressly forbidden in all judgments by the Civil Code. (Civil Code, sec. 1920.)
Phelan & Le Breton, for the Respondent.
Placing the funds in bank in the name of his firm was an employment of them which renders the executor liable for interest. (2 Williams on Executors, p. 1569 ; 2 Redfield on Wills, 882, note 11, citing cases, et seq.; Treves v. Townschend, 1 Brown [406]Ch. 385; Boclce v. Hart, 11 Yes. 59, 60 ; Ex parte Hilliard, 1 Yes. Jr. 90; Ex parte Townshend, 15 Yes. Jr. 470.)
By mingling the trust fund with his own, he destroyed its identity, jeopardized its safety, and became guilty of a breach of trust, (Lathrop v. Bampton, 31 Cal. 21, 24; Hagthorp v. Hook, 1 Gill & J. 270; Parker’s Estate, 64 Pa. St. 307; Ex parte Townshend, 15 Yes. Jr. 470) ; and is chargeable with interest. (Estate of HuTbert, 39 Cal. 600; Estate of Gasq, 42 Ibid. 288; Estate of Me Queen, 44 Ibid. 589; 2 Bedfield on Wills, p. 886; Dunscomb v. Dunscomb, 1 John. 508.)
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