Hooper v. Hooper
| Citation | 9 S.E. 937,32 W.Va. 526 |
| Court | West Virginia Supreme Court |
| Decision Date | 27 June 1889 |
| Parties | Hooper et al. v. Hooper et al. |
Hooper et al.
v.
Hooper et al.
Supreme Court of Appeals of West Virginia.
June 27, 1889.
1. Two partners are engaged in business in another state, —one living in this state, one in the other, —and the one living in this state dies, and the other becomes one of his executors, under a qualification, in this state. At his death the business is closed up, and partnership debts are to be collected and paid, and the effects sold. If, when this is accomplished, the survivor is insolvent, the sureties in the executorial bond are not liable for the interest of the deceased in the partnership; but, if said survivor is then solvent, they are liable.
2. If, at the time when it may be said under the law that the business was in such condition that it was the duty of the survivor to turn into his hands as executor the share of the deceased in the assets, the survivor was insolvent, his sureties in such bond are not liable; if he is then solvent, they are liable.
3. If, when the survivor makes a statement of receipts and disbursements as surviving partner in winding up the business, showing a balance in his hands to be divided, he is insolvent, so that such balance is not substantial assets, his sureties in such bond are not liable for such balance; if then solvent, they are.
4. Liability of sureties in the bond of an executor or administrator is limited by the terms of the covenant of the bond, and cannot be extended by implication.
5. A judgment against an executor is conclusive, both as to the validity and amount of the demand, on both executors and legatees.
6. Where A., for a valuable consideration paid by him, purchases property of B., which is, by the terms of the sale, to be conveyed to C, and is afterwards so conveyed, and C. promises in consideration thereof to pay a debt due from A. to D., the promise of C. to pay such debt, though not in writing, is binding on him, if assented to by D.
7. After C.'s death B. is a competent witness to prove C.'s promise.
8. An executor is not to be charged with a debt when it becomes due, but only when he actually receives it, unless it is shown to have been lost by his negligence or improper conduct.
9. A debt due to an executor individually from a legatee may be insisted on as part payment of the legatee's legacy.
(Syllabus by the Court.)
Appeal from circuit court, Marion county.
Suit in chancery by Harry B. Hooper, Sarah Hooper, and Rose P. Sullivan, instituted in the circuit court of Taylor county, and removed to Marion county, against Charles E. Hooper and W. S. Hooper, executors of the will of John W. Hooper, deceased, to sur-
[9 S.E. 938]charge and falsify their account, and settle the same, and, the executors being insolvent, obtain a decree against the sureties on the bond for devastaverunt. For further statement of the case see former opinion, 1 S. E. Rep. 280. From a final decree of the circuit court of Marion county; rendered July 10, 1888, directing defendants to pay to said Sarah Hooper $1,552.31 and interest from that day; to said Harry B. Hooper $2,111.31 and interest from that day; and to said Rose P. Sullivan $991.49 and interest as aforesaid, —plaintiffs appeal.
Woods & Martin, for appellants. A. F. Raymond, for appellees.
Brannon, J. This cause has been in this court once before. See 29 W.Va. 276, 1 9. E. Rep. 280. Since it was remanded to the circuit court of Marion county additional evidence has been taken, and a further report has been made by Commissioner Hayden, to which exceptions were filed by plaintiffs and defendant Sarah Hooper, and by defendants Brink-man, Doonan, and Grimes, administrators of Charles E. Hooper, and by defendant Whites-carver. On these exceptions the case here turns. This is an appeal from a decree of the circuit court of Marion, taken by the plaintiffs and Sarah Hooper, and some errors have been assigned by defendants Brinkman and Doonan.
A very important matter in the cause, raised by appellants' exceptions 1 to 5, inclusive, is as to certain furniture and other personal property employed in the operation of an hotel at Cumberland, in the state of Maryland, known as the "Revere House." Shall its value be decreed against the sureties in the executorial bond given by W. S. Hooper and Charles E. Hooper, as executors of John W. Hooper, deceased, upon their qualification before the recorder of Taylor county, West Virginia? The bill treats this property as the property of the decedent, John W. Hooper, never suggesting that it was the property of a partnership composed of John W. Hooper and his son, Charles E. Hooper, one of his executors; but Charles E. Hooper, in his answer, denied that it was the property of John W. Hooper, and alleged that such a firm existed, and that this property was owned by it. When Judge Johnson delivered the opinion on the former appeal he held that the evidence did not establish such a partnership, and hence be did not place the opinion on that basis, but treated this property as the sole property of John W. Hooper. The question then arose whether this hotel property, which at John Hooper's death was in Cumberland, in the hands of Charles E. Hooper, who was managing said hotel, and part of which was there sold by Charles E. Hooper, and a part brought into this state and sold by him, could be charged to the executors and their sureties. Judge Johnson, after discuss-ing the case of Tunstall v. Pollard, 11 Leigh, 1, and other cases, says: "In none of the cases which we have seen was the direct question decided which is here presented, whether the sureties are liable for goods brought by the executor from another state into this, and wasted. * * * If the executor, as such, is liable, there can be no doubt his sureties are." Nor did he decide the question, though his evident leaning is in favor of the position that they would be liable. As I do not think the case, as it now is, involves that question, I simply refer to authorities bearing on it. Tunstall v. Pollard, 11 Leigh, 1; Powell v. Stratton, 11 Grat. 792; 1 Rob. Pr. (New,) 162, 166, 189, 191, 192; Schouler, Ex'rs, §§ 174-176; Andrews v. Avory, 14 Grat. 229; Mack-ey v. Coxe, 18 How. 104; Wilkins v. Ellett, 9 Wall. 740; and cases cited 29 W. Va. 291, 1 S. E. Rep. 280; Burnley v. Duke, 2 Rob. (Va.) 130. As above stated, Judge Johnson did not decide the question just indicated; but his decision that the bond held its obligors liable for this hotel property rested on the fact that the will directed the sale of testator's personal property, "wherever situated, " and, the bond having covenanted for a faithful discharge by the executors of their duties under the will, the court held the sureties responsible for the proceeds of such sale. But since that decision evidence taken in the case has established that a partnership existed between John W. Hooper and Charles E. Hooper in the name of J. W. & C. E. Hooper in the carrying on of the Revere House hotel, and the property in question was property of the firm, not of John W. Hooper solely; and so this clause of the will directing the sale of testator's property could not apply to it, and therefore the reason so pointedly stated by Judge Johnson on page 297, 29 W. Va., 1 S. E. Rep. 296, as the ground of the decision, does not now apply. The able counsel for appellants in his brief virtually concedes that this partnership has been proven, and argues on that basis.
Therefore the question now is: Are the sureties in the executorial bond liable for the testator's interest in this property? At testator's death this property was in the hands of Charles E. Hooper, the legal title resting in him as surviving partner, with power to sell. Hooper v. Hooper, 29 W. Va. 285, 1 S. E. Rep. 280. It was the duty of Charles E. Hooper as surviving partner to close the business, collect the assets, dispose of the effects, and, after settling debts against the firm, to adjust the accounts between himself and his copartner, and turn over to his estate his interest in the net social assets, after discharging the social debts. But this duty, we may say, arose before the executorial bond was given; at least he had formed a relation, — that of copartner, —from which that duty might at any moment fall upon him. It did fall upon him. Then this property was in his sole and exclusive possession as surviving partner, and in another state. He still carries on the hotel for eight months after his father's death, and incurs expenses in so doing, loses in so doing, sells the property there in larger part, brings some to this state, sells
[9 S.E. 939]it, and wastes it. It is true, he had no right after his father's death to continue this business. Story, Partn. § 343; Hooper v. Hooper, supra. But he did continue it. Are the sureties liable for the misconduct and waste of the partnership property by the surviving partner because he was executor? The liability of a surety in the bond of an administrator or executor is limited by the terms of its covenants, and cannot be extended by implication. 7 Amer. & Eng. Cyclop. Law, 217. Courts go no further against sureties than the scope of their obligation compels. Brandt, Sur. § 102. The condition of the bond in this case is for the faithful discharge of their duties as executors. Clearly the duty of closing the partnership and paying over to himself, as executor, the share of John W. Hooper in the firm assets, rested on Charles E. Hooper as surviving partner, in the first instance; (1) because his position as partner, with all duties which might ensue therefrom, began before he became executor; (2) because the legal title of the partnership property, the exclusive possession, the sole and absolute power of selling it, and the function of paying...
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