Boyd v. Wyly

• Decision Date: 09 January 1888
• Citation: 8 S.Ct. 364,124 U.S. 98,31 L.Ed. 369
• Parties: BOYD v. WYLY et al. 1
• Court: U.S. Supreme Court

124 U.S. 98

8 S.Ct. 364

31 L.Ed. 369

BOYD v. WYLY et al.¹

January 9, 1888.

[

[Statement of Case from pages 98-101 intentionally omitted] Robert Mott and Wm. A. Maury, for appellant.

John T. Ludeling and J. R. Breckwith, for appellees.

Mr. Justice MATTHEWS, after stating the facts as above, delivered the opinion of the court.

The first point raised in argument on the part of the complainant is as to the validity of the proceeding in the court of East Carroll parish, by which Frederick W. Boyd was, in the language of the Louisiana law, destituted of his office as dative testamentary executor, and the defendant Egelly substituted in his place. It is alleged in the bill, and insisted upon in argument, that this proceeding was had without any actual, and without any legal constructive, notice to Boyd, and that it is therefore null and void. It is charged, as a consequence, that Egelly became, not the rightful executor, but executor de son tort, and that of this Wyly had notice imputed to him by law, because shown by the the record. It is thence argued, as an inference reasonably to be deduced, that the proceeding must have been in pursuance of the fraud charged in the bill, and, taken in connection with the subsequent proceedings and their result, constitutes proof of the fraud charged.

It appears from a transcript of the record of the proceed- ings in question that on July 16, 1868, there was filed in the office of the parish court for the parish of Carroll a petition on behalf of certain creditors of the succession of James Railey, among whom are named Edward Sparrow and J. W. Montgomery, in which it is alleged that Frederick W. Boyd, after qualifying as dative testamentary executor in 1866, had leased out the plantation for one year, and cultivated it himself during the year 1867; that he had never filed any account of his administration, but had appropriated and used the rents and revenues of the estate for his individual benefit, without paying any of the creditors any portion of their just dues; that he had abandoned his administration, and had no domicile or residence in the state, and was permanently absent therefrom; that he had never given any sufficient bond for the faithfulness of his administration, the sureties thereon being insolvent, and had no property in the parish nor in the state, and that he had left no power of attorney authorizing any one to represent him in the management of the estate. The petitioners therefore prayed that the office of the said Boyd and the administration of the estate might be declared to be vacated and unrepresented; that Boyd be decreed to have abandoned his trust; and that, in order to protect the interest of the creditors, an administrator be appointed to finish the administration of the estate, and that Egelly be appointed thereto. This petition was signed on behalf of the petitioners by Sparrow and Montgomery as their attorneys, and was verified by the affidavit of Montgomery.

Among the papers on file in the matter of this proceeding in the parish court appears one styled 'Opposition of F. W. Boyd,' which is as follows: 'To the Hon. Geo. C. Benham, Parish Judge in and for the Parish of Carroll, State of Louisiana: The petition of Frederick W. Boyd, a resident of the state of Mississippi, with respect shows that he is the duly-appointed executor of the last will and testament of Jas. Railey, late resident of your said parish and state; that he had duly administered the property of the succession of the said Railey since his appointment and confirmation as executor under the will. Petitioner further shows that an application has been made to your honorable court praying that E. R. Egelly, Esq., be appointed dative testamentary executor of the said succession, notwithstanding your petitioner is acting as executor of the same. Wherefore your petitioner prays that the said application be rejected, and that the said applicant pay all costs of this proceeding, and for all general relief.' This is signed by Goodrich, Pilcher & Montgomery, as attorneys. There are no official marks upon it showing the fact or date of its being filed. The testimony of Charles M. Pilcher, one of the firm who signed it, is that the document was written by him from a memorandum given to him by his partner Goodrich who was the member of the firm who had charge, during the administration of Boyd, of the business of the succession of the Railey estate. The witness states that the paper was prepared and filed, as he believes, on behalf of Boyd, by virtue of authority of the firm to act for him; and he states as his belief that when prepared and filed it was upon a full sheet of paper, upon the back of which the style of the case was noted, and on which would also be indorsed the fact and date of its being filed...