Walkerly v. Bacon

The Court. This is a bill in equity against the executors of the last will and testament of William Walkerly, deceased. Decedent was the sole devisee of Martin Walkerly, deceased, and as such received on distribution the entire estate left by said Martin, amounting to about two hundred thousand dollars. It is alleged, and the court finds, that he accepted and received this estate subject to a parol trust to pay out of said estate to the plaintiff in this cause the sum of ten thousand dollars. William Walkerly died without having executed the trust by paying the said ten thousand dollars, or any part thereof, and his estate passed to his executors, subject to the trust.

[140]In this state of the case, the plaintiff presented a formal claim against the estate for said ten thousand dollars to the executors for allowance. They allowed it for five thousand dollars only, when it was presented to the judge of the proper court, and by him approved for the same amount, and it now stands as an allowed claim for five thousand dollars against the estate, having the force and effect of a judgment payable in due course of administration.

This bill is filed to enforce the trust against the estate and the executors as to the remaining five thousand dollars. The court finds all the facts in favor of the plaintiff, and specially finds that the plaintiff did not intend to waive his claim to the balance of five thousand dollars of his ten-thousand-dollar claim by any of the acts alleged in the complaint and answer herein, and has never received any money whatever from the defendants or the estate of William Walkerly. It also finds that the claim is not barred by the statute of limitations, and is not stale. It then finds, “ as conclusion of law, from the foregoing facts, in connection with the admissions of the pleadings herein, that the acceptance by the plaintiff herein of the partial allowance of the claim presented to the defendants prevents his recovery in this action, and that defendants are entitled to judgment for costs herein.”

The case comes up on the judgment roll. Under the admissions of the pleadings and the facts found, we see no good reason for this conclusion of law. The plaintiff might have filed his bill to declare and enforce the entire trust for the full sum of ten thousand dollars, no part of the same having yet been paid; but the executors having acknowledged it, and, in conjunction with the judge of the court sitting in probate, given it the force and effect of a judgment payable in due course of administration of a perfectly solvent estate to the extent of one half of the amount, he seeks in this action only to have it declared and enforced as to the remaining half. Under