Christy v. Mcbride

• Decision Date: 31 December 1832
• Citation: 1 Scam. 75,2 Ill. 75,1832 WL 2440
• Parties: HUGH CHRISTY, and MORNING, his wife, appellants,v.WILLIAM H. MCBRIDE, administrator of Samuel Wilson, deceased, appellee.
• Court: Illinois Supreme Court

1 Scam. 75

2 Ill. 75

1832 WL 2440 (Ill.)

HUGH CHRISTY, and MORNING, his wife, appellants,

v.WILLIAM H. MCBRIDE, administrator of Samuel Wilson, deceased, appellee.

Supreme Court of Illinois.

December Term, 1832.

THIS cause was originally instituted in the Court of Probate of Randolph county, by Christy and wife, in her right as one of the heirs at law and distributee of Samuel Wilson, deceased, against McBride, administrator of the estate of said Wilson, to recover of him her distributive share of said estate, after all legal demands should be satisfied. On the trial before the Court of Probate, the administrator exhibited his account current, showing a balance in his hands of $190.63 3/4 belonging to the heirs. The plaintiffs then proved that in addition to said balance of $190.63 3/4, McBride, as administrator, had obtained three notes made to said Wilson, the intestate, in his lifetime, by one John Kingley, of Washington county, Virginia, and amounting with interest to more than $800; and that said McBride, through his agent, one Charles Tate, had collected said notes; and that said Tate had appropriated the money to his own use; and that he, Tate, was insolvent and unable to pay the amount to McBride. That McBride acted honestly and in good faith in sending said notes to said Tate; and before he sent them he consulted with William C. Greenup, clerk of the County Commissioners' Court of Randolph county, and was by him advised to send the notes to Tate for collection, but that he had no personal knowledge of said Tate. That Tate, when the notes were sent to him, or about the time, was reputed to be in solvent circumstances, and had been, or was then, sheriff of Washington county. The Court of Probate, on this state of facts, decided that McBride was not liable for any part of this money so collected by Tate, to the heirs and distributees of said Wilson, deceased. To which opinion a bill of exceptions was tendered by said Christy and wife, and signed, and an appeal taken to the Circuit Court of Randolph county, where said judgment of the Court of Probate was affirmed, and a bill of exceptions tendered and signed, and the case brought to this Court by appeal. The cause was heard in the Circuit Court before the Hon. Theophilus W. Smith, at the September term, 1831.

S. BREESE and D. BLACKWELL, for the appellants, contended:

1. Every person acting in a fiduciary character is responsible to his cestui que trust for that which may be committed to his care by law, and nothing but inevitable accident will excuse him. 5 Vesey, Jr., 794, 800; 4 Dane's Abr. 270, 271.

2. An administrator is responsible if his agent embezzle the assets of the estate. 1 Dane's Abr. 590, Art. 16; 6 Mod. 93; Toller's Exrs. 426.

3. Upon general principles, the principal is responsible for the acts of his agent. Livermore on Agency, passim.

4. The appropriation of money collected by the agent of the administrator is a collection and appropriation by the administrator himself, upon the maxim qui facit per alium, facit per se.

5. The administrator would be liable, without doubt, if he had gotten this money into his own possession, and the case is not altered by its being in the possession of a person of his own selection who proves dishonest. Coxe's Dig. 48, § 27.

6. The case shows that McBride did not use due caution in the selection of his agent, nor did he select one whose business it is to collect notes, and he is therefore liable for such want of caution. Coxe's Dig. 318, § 27.

7. The loss of the money having happened by the act of the administrator, who ought to have used more than ordinary caution, it is more conformable to the principles of right and justice that he should lose than that the heirs and distributees should incur a loss, though he may not have been guilty of fraud. Coxe's Dig. 316, § 6, 7, 8, etc.; Breese, 113, Duncan v. Morison and Duncan.

8. The administrator by trusting Tate took security inferior to Kingley, the maker of the notes, and having thereby brought a loss on the estate he is liable. Hunter v. Bryant, 2 Wheat. 32; Coxe's Dig. 13.

9. The evidence shows that McBride did not take the same care or use the same caution, in regard to the notes, that a moderately careful man takes of his own affairs, and he is therefore liable for ordinary neglect. Coxe's Dig. 80, Bailment; Jones on Bailment, 68, 69, 168.

10. The only cases known to the law, where an executor or administrator is discharged for losses, are, where he may be robbed, or where the stock falls or funds fail in which he, with good faith, has invested the funds of the estate, or where, acting in compliance with law, a loss inevitably happens. 1 Dane's Abr. 270, 271; 4 Caines' Cas. in Error, 96; 5 Vesey, Jr., 794, 800.

11. The loss thus incurred by the administrator fixes a Devastavit upon him, for which he is chargeable.

D. J. BAKER and HALL, for the appellee, contended:

1. “Where there is manifest fidelity and ordinary diligence displayed, courts will reluctantly enforce the rigid rules of law.” 2 Wheaton's Rep. 32. “An administrator is not answerable if he lend money on security, good at the time, if it fail, or vest it in the funds, and they fail.”“If rent be due on a lease, and the tenant become insolvent, and the executor release the rent, and give him a sum of money to quit possession, and in all this, evidently acts for the benefit of the estate, he shall be allowed both.”“The principle of this last case will be found to apply to a very great number of cases in which the executor acts honestly and prudently, though there be a loss to, or diminution of, the testator's estate or rights.” See 1 Dane's Abr. 590, and the authorities there referred to.

“If an executor lend money on real security, which at the time there was no reason to suspect, and afterward such security prove bad, he shall not be chargeable with any loss any more than he would have been entitled to the produce of it, if it had been sufficient.” Toller's Exrs. 481; 1 P. Wm. 141.

“So where A, an executor, paid the assets into the hands of B, his co-executor, with whom the testator was wont to keep cash as his banker, on failure of B, the Court held that A ought not to suffer for having trusted him whom the testator trusted in his lifetime, and at his death appointed one of his executors.” Ibid.“Generally speaking, although if an executor release or compound a debt, he shall be charged, yet if he appear...