Jones v. Ward

• Decision Date: 31 December 1836
• Parties: JONES and others v. WARD.
• Court: Tennessee Supreme Court

18 Tenn. 160

JONES and others

v.WARD.

Supreme Court of Tennessee.

December Term, 1836.

OPINION TEXT STARTS HERE

Alexander M. Clayton, Esq., was commissioned by the governor, as a special judge to try this cause, one of the members of the regular court being constitutionally ineligible to sit in it. All the facts are stated in the opinion delivered by Judge CLAYTON.

R. J. Meigs and J. Rucks, for complainants.

F. B. Fogg and Geo. S. Yerger, for defendant.

CLAYTON, Special Judge, delivered the opinion of the court.

The bill in this cause was filed by the legatees of Peter Jones, deceased, against E. Ward, the executor, praying for an account and for a decree against the executor for such sum as may be found due to them. The account was ordered and was taken in the court below, exceptions were filed to it by both complainants and defendant, a decree was rendered for the complainants for a large sum, an appeal was taken to this court, and we have now to decide upon the correctness of that decree, upon the exceptions filed to the report of the clerk and master. The record is voluminous and the questions growing out of it, although involving few important principles, are yet numerous and intricate. They relate to a long series of transactions, running through many years, and comprehending many particulars, incapable from their very nature of being generalized and reduced to system. Our opinion will, therefore, have to be given without much regard to the order in which the questions arise.

The first question which will be considered relates to an item of $300, alleged to have been lent by the testator, Peter Jones, to the defendant, a few days before the death of the former. The answer denies all recollection that any such loan was made; the evidence in support of the claim is the deposition of Mrs. Watkins, the widow of the testator. A short time before the death of the testator a settlement was made between him and the defendant, Ward, upon which Ward executed his bond for the balance found due from him, and the testator gave a receipt in full up to that time. Whether the testimony of Mrs. Watkins relates to a time prior or subsequent to this settlement does not very distinctly appear. If the loan were made before the settlement, it was embraced in it; if afterwards, the evidence should show the fact to be so. The answer is responsive to the bill; it contains as distinct a denial as should be required after the lapse of such a length of time, and we do not think it is so outweighed by the testimony as to authorize us to allow the claim; neither is there any reason to charge the executor with this sum because of his failure to reduce it into his possession as assets. There is no evidence that he knew of its existence, either in the hands of the widow or any other person, and, in the absence of such testimony, he cannot be charged with a devastavit. This exception is overruled.

The next exception which will be considered is one on the part of the defendant, because of the rejection of an item of $714 which was paid by the executor for the improvident expenditures of Alex. Jones, one of the legatees, whilst at college. It is claimed by the executor in his general account of disbursements, and he contends that the payment was authorized by the enlarged powers conferred on him by the will. It was paid from a conviction that it was best for the young man; it was done to save him from disgrace, and to preserve the elevated standing and character of the family. These feelings reflect credit on the man who could entertain and act upon them, but they cannot have weight in the determination of the cause. The question is purely legal and must be decided by the law. We think the payment by the executor was unauthorized, and that he is chargeable with the amount to the estate. 1 Roper on Leg. 589.

The question of interest upon this sum is one of more complexity. It is insisted for the defendant that an executor is only to be charged with interest when he has received interest, or when he has used the money of the estate for himself. The rule thus laid down is too restricted. The language of this court in Turney v. Williams, 7 Yerg. 213, does not justify the conclusion that an executor or administrator is only chargeable with interest in the cases there enumerated. In that case the court says: “Where an executor uses the money of the estate for himself; where he keeps the money by him without a reasonable ground for doing so; where, by long delay in settling his accounts, the use of the money by him may be inferred, in all such cases interest will be charged.” In specifying these instances the court nowhere intimates an intention to exclude others. The rule will be found to have been laid down with more latitude than is contended for in the argument. In Williams on Ex., vol. 2, p. 1131, it is said: “There are two grounds on which an executor or administrator may be charged with interest. 1st, negligence in laying out the money for the estate; 2d, that he has himself made use of the money to his own profit or advantage, or has committed some other misfeasance.” When we examine what the acts of misfesance are which will thus render an executor or administrator liable for interest, we find that they are all such acts of negligence or wrong administration as will disappoint the claimants on the assets. Id. 1105. As, if he applies the assets in payment of a claim which he is not bound to satisfy. Id. 1109. In these cases he is bound to account for the principal sum with interest. A single case only is referred to in argument, in which no interest was charged. Brunton v. Pemberton, 12 Ves. 386. That was a case in which the executor set up a claim to the fund, believing he was entitled to it in his own right. The court was of opinion that he would have been clearly entitled to it if he had set up his claim in the lifetime of the testator, but, as he lost the principal sum because of his negligence in asserting his right, they would not impose on him the further loss of the interest. Other cases of a similar character are to be found, but they stand so much on their own peculiar circumstances that no general rule can be deduced from them. Massey v. Banner, 4 Mad. 219; Byrchell v. Bradford, 6 Mad. Courts of equity have retained a discretion to allow interest, or not, according to the circumstances of each case; yet it is not an arbitrary, but in a great degree a regulated, discretion, controlled and governed by principles from which we cannot depart without introducing uncertainty and confusion into our system of equitable jurisprudence. The executor must be charged with interest on the amount from the time when he paid it out. But this sum was paid by him before the expiration of two years from the time he became executor; it was never in his hands as guardian, and he is only to be charged with the principal sum and simple interest from the time he paid it out.

We proceed next to “the exception of the defendant to the refusal of the clerk and master to give him credit for certain sums of money, amounting to nearly $1,000, claimed to have been retained by the executor to satisfy the same amount due to him as the executor of Richard Jones, deceased.” Peter Jones and Edward Ward became the joint executors of Richard Jones about the years 1803 or 1804. There is evidence in the record to show that Peter Jones frequently received considerable sums of money belonging to the estate of Richard Jones, and much testimony has been taken to show that he could not have paid it to the legatees or to the co-executor. A settlement was made by Col. Ward, one of the executors, with the estate of Richard Jones, in 1810, and the estate is then found to be in his debt upwards of $600. Peter Jones never made any settlement of his transactions as executor of said estate, so far as appears from this record, unless the settlement made by Ward included the transactions of both executors. That the settlement of Ward did include the transactions of both executors to some extent is manifest, because we find in the account exhibited by him that the estate is charged with the expenses of Peter Jones in making two trips to Virginia, and with a small sum of money paid by Peter Jones. It is not shown in evidence, nor is it contended in argument, that Col. Ward paid the legatees of Richard Jones, deceased, the amount of money said to have been received by Peter Jones, at any time after the settlement which he made in 1810; if Col. Ward ever paid it, it was before that settlement. If he did pay money for Peter Jones to the legatees of Richard Jones at any time before the death of Peter Jones, it became a debt due from Peter Jones to the defendant as an individual, without any reference to their fiduciary character. It was a debt due from one to the other, without any regard to its origin. In February, 1811, a few days before the death of Peter Jones, a settlement took place between him and the defendant, Ward. It was made at the house of Jones, in the prospect of his speedy dissolution, and, from the unambiguous and comprehensive language used in the receipts which passed upon the occasion, it was probably intended to close forever between the parties all accounts on this side of the grave. The instrument signed by Ward says:

“This day had a final settlement with Peter Jones, of all and every transaction of every kind and description, except his crops of cotton made in the years 1809 and 10, which are in my gin-house, and find myself indebted to him in the sum of $150.” Stronger and more expressive language could scarcely be employed. It is insisted, in argument, that this receipt was intended to embrace only the individual dealings and accounts of Peter Jones and Col. Ward, and was not intended to extend to their transactions as the representatives of Richard Jones, deceased. If this be so, still the decree below is correct. If Col. Ward had previously paid the debt of ...