Chaigneau v. McColgan
Before: Henshaw
Synopsis
Estates of Deceased Persons—Accounts of Executor—Liability for Negligence.—An executor is chargeable not only with the assets of the estate which come into his possession, but also with those which by negligence he has failed to collect, and which it was his duty to have taken into his possession.
Id.—Sale of Realty—Tenancy in Common—Settlement of Trust Estate. Where real estate in which the estate of a deceased widow and trustees of the children held undivided interests was sold under separate orders of the court, one of which was obtained by the executor, and the other was made in an action to terminate and settle the trust, to which the executor was not a party, it was the duty of the executor to have received and taken the share of the purchase money belonging to the estate, and the court having charge of the settlement of the trust had no power to make disposition of any other moneys than those belonging to the trust estate, and a void order of such court directing that the whole of the moneys received from the sale should be applied in cancellation of charges against the trust estate, could neither bind nor protect the executor, and he is justly chargeable in his accounts with the moneys belonging to the estate of the'deceased widow which it was his duty to secure. ■
Id.—Authorized Expenditure—Estoppel—Stipulation—Advance to Distributee.—Treating the money paid on account of the sale of the interest Of the deceased widow by the executor as having been received and expended by him, an express authorization of its expenditure by parties in interest who were sui juris would have protected him against any future demand upon their part, though the outlay may have been irregular, -and not in the line of his duty, and any such patty would be estopped from contesting an outlay to his advantage which he had induced and sanctioned; and the effect of a stipulation by a party for whose benefit the trust was created who had become sui juris, consenting to the order for payment of the money to cancel charges against the trust estate, was to entitle the executor to a credit of the amount of the disbursement authorized by him, which was in effect an advance made by the executor to him and chargeable to his distributive share of the estate.
Id.—Stipulation After Transfer of Interest.—A stipulation signed on behalf of a party who had previously sold and transferred all interest in the estate, the transfer of which was on file with the papers in the estate, could confer no authority upon the executor to disburse the moneys belonging to such interest; and notice to the executor of such transfer is immaterial, he being neither accountable because of notice, nor excusable for the lack of it, but, as against the transferee, the irregular disbursement oí the funds of the estate was made at the peril of the executor.
HENSHAW, J. This is an appeal by the executor from the order of court surcharging his final account with the sum of $4,500.
Stripped to its essential facts the case is this: Edward Kennedy was the husband of Amelia Marie, and the father of Edward T. and Frederick E. Dying, he left one-half of his estate to his widow and one-half to trustees for his children. The larger portion in value of the estate consisted of real property, which was distributed in undivided interests, one-half to the widow and one-half to the trustees. The lands have never been partitioned in severalty, nor the interests segregated, saving that when he attained his majority there was conveyed to Edward T., as an undivided interest, his one-half of the trust property.
In time Amelia Marie, widow and mother, died, and the two sons named became entitled to their mother’s estate. They each [460]owned then one-half of the trust property, and one-half of the property left by their mother. Edward T. attained his majority, married, and died intestate, leaving as sole heirs at law his widow Ida, and a minor child, Edna. Thereafter Frederick E., having reached the age of twenty-one, an action was brought by the trustees to settle the affairs of the trust and distribute its property. Ida and Edna, the widow and child, were made parties, a guardian ad litem having been nominated to represent the latter.
The court stated the account, and charged the trust with large sums of money. There being no funds in the trust, these charges were made a lien upon its lands, which were ordered sold in sufficient amount to discharge them.
To meet these obligations there was sold for $9,000 a piece of realty, the title to which stood in undivided interests as follows: one-half in the estate of Amelia Marie Kennedy, one-fourth in the trust, and one-fourth in the estate of Edward T. Kennedy. Leave of court was obtained by this appellant, as . executor of Amelia Marie Kennedy’s estate, to sell its one-half, and the sale was made for $4,500, and confirmed. Like leave and confirmation were secured by the administrator of Edward T. Kennedy’s estate. The purchaser received the separate deeds at one time and paid over the money in gross. • ■
Of this money $4,500, of course, should have gone into the estate of Amelia Marie Kennedy, $2,250 to the estate of Edward T. Kennedy, and $2,250 to the trust. Instead, however, the parties to that action agreed and bound themselves by stipulation (so far as the signatures of their respective attorneys at law could bind them) to devote the $9,000 to the cancellation of the charges against the trust.
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