Belcher v. Branch

• Court: Rhode Island Supreme Court
• Writing for the Court: DURFEE, C. J.
• Citation: Belcher v. Branch, 11 R. I. 226 (R.I. 1876)
• Decision Date: 22 July 1876
• Parties: JOSEPH BELCHER, appellant, v. MARIETTA BRANCH et als.

11 R.I. 226

JOSEPH BELCHER, appellant, v. MARIETTA BRANCH et als.

Supreme Court of Rhode Island.

July 22, 1876

Aug. 4 1875.

Testamentary disposition as follows, the estate being for the most part realty: " I give, devise, and bequeath all the rents, profits, dividends, or income of my estate, real or personal, to my six sons, or to those who represent them legally; to wit, William L., Stephen H., Albert S., deceased Thomas W., Henry E., and Edwin L., until the decease of the last of my said sons aforesaid, to be divided equally among them, or those who legally represent them, the representatives taking the portion only of him they represent. At the decease of the last of my said sons as aforesaid, I give, devise, and bequeath all my estate, both real, personal, or mixed, to all my grandchildren, to be equally divided among them, their heirs, and assigns forever in fee simple. I direct my executor, hereinafter named, to pay all my just debts and necessary expenses out of the property aforesaid, and to pay all taxes and repairs which are absolutely necessary, and to divide the rents, profits, and income of the real and personal property as aforesaid. I hereby appoint my eldest son, William L. Branch, my executor."

Held, to constitute a trust of the realty and personality.

Query, whether the legal title of the realty vested in the executor.

The executor having died and an administrator de bonis non with will annexed succeeding him: -

Held, that this administrator did not have the powers over the realty given to the executor by the will.

Held, further, that this administrator having exercised these powers, with the assent of the cestuis que trust, was not accountable to the Probate Court for the rents, & c., received.

Held, further, that this administrator could not use personality to repair realty.

An administrator succeeding an executor takes only the powers inherent in the executor's office. Special powers given the executor do not go to such an administrator, unless the will explicitly or implicitly continues them to such administrator.

The administrator being removed pending an appeal and a new one appointed; the court held that it would confine its consideration on the appeal to the account appealed from, as it was when presented for settlement.

The account presented not being a final one, the court refused to allow interest for the time after its presentment, or after the period covered by it, such interest being a matter for subsequent accounting.

Sureties on the bond of an executor or an administrator may appeal from the decree of a Probate Court, fixing the balance due to the estate of the testator or intestate.

APPEAL from the Probate Court of Providence. The facts are stated in the opinion of the court.

James G. Markland, for appellant.

James Tillinghast, for appellees.

DURFEE, C. J.

This is an appeal from a decree of the Municipal Court of the City of Providence settling the account of Edwin L. Branch, as administrator de bonis non with the will annexed of the estate of Stephen Branch. The appellant is surviving surety on the administrator's bond. His right to appeal is not disputed, and, we think, cannot be successfully disputed. The decree finds the balance for which the surety is bound, and therefore the surety is aggrieved if the balance found exceeds the proper amount. Farrar v. Parker, 3 Allen, 556; Curtis v. Bailey, 1 Pick. 198; Garber v. The Commonwealth, 7 Pa. St. 265; Stovall v. Banks, 10 Wall. 583.

The administrator was appointed October 4, 1859. He rendered an inventory October 11, 1859, showing the receipt of $1,745. He afterwards settled nine accounts, the ninth being settled October 13, 1868, showing the balance of $1,745 still in his hands, the income thereof, less expenses, having been divided among the legatees under the will. He rendered the account now before us October 15, 1872. It shows a balance in his hands of only $1,395. The income only has been divided out, but the administrator has used $500 of the fund in repairs on real estate devised by the will. He has since replaced $150 out of the rents of the real estate. The balance stands $1,745-500+150=1395. The appellees contest the right of the administrator to use any part of the moneys in his hands in repairs on the real estate. They also dispute certain items of his account relating mainly to his dealings with the real estate, the charge of which he assumed when he became administrator, renting it for the devisees and accounting therefor in his administration accounts. The result of the contest in the Municipal Court^[1] has been a balance found against him of $2,268.49.

Two questions arise, namely: 1st. Had the administrator a right to use any part of the moneys in his hands in repairs on the real estate? 2d. Is he chargeable in his administration account for his dealings with the real estate? The appellant claims that he had a right to use the moneys for repairs under the will. The appellees claim that he is chargeable as administrator for his dealings with the real estate under the will. The will is as follows, viz.:

" I Stephen Branch of Providence in the County of Providence State of Rhode Island & c. do ordain and make this my last will and testament As my property is principally in real estate my wife's right of dower will be a suitable portion for her of my estate I give devise and bequeath all the rents profits dividends or income of my estate real or personal to my six sons or to those who represent them legally to wit William L. Stephen H. Albert S. deceased Thomas W. Henry E. and Edwin L. until the decease of the last of my said sons aforesaid to be divided equally among them or those who legally represent them the representatives taking the portion only of him they represent At the decease of the last of my said sons as aforesaid I give devise and bequeath all my estate both real personal or mixed to all my grandchildren, to be equally divided among them their heirs and assigns forever in fee simple I direct my executor hereinafter named to pay all my just debts and necessary expenses out of the property aforesaid and to pay all taxes and repairs which are absolutely necessary and to divide the rents profits and income of the real and personal property as aforesaid I hereby appoint my eldest son William L. Branch my executor.

In testimony whereof, I have hereunto set my hand and acknowledged this as my last will and testament, at Providence, this second day of May A. D. one thousand eight hundred and forty-five (1845)."

The will manifestly charges the executor with the care of both real and personal estate so long as either of his sons survives. In fact it creates a trust of the real and personal estate, though it may be questioned whether the executor takes the legal title of the real estate or anything more than a power over it. The point is made by the appellant that the estate must be considered as having been fully administered, and that the balance, in the hands of the administrator, is to be regarded as in his hands not as administrator but as trustee under the will. We are not of that opinion. There can be no claim that the executor, during his lifetime, had fully administered; for, if he had, the...