Joy v. Elton

• Decision Date: 16 October 1900
• Citation: Joy v. Elton, 83 N.W. 875, 9 N.D. 423 (N.D. 1900)
• Court: North Dakota Supreme Court

83 N.W. 875

9 N.D. 423

WILLIS A. JOY, AS ADMINISTRATOR, v. JAMES ELTON, et al

Supreme Court of North Dakota

October 16, 1900

Appeal from District Court, Grand Forks County; Fisk, J.

Action by Willis A. Joy as administrator of the estate of Catherine L. Wording, deceased, against James Elton and Stillman W McLaughlin as executors of the estate of Catherine L Wording, and others. From a judgment in favor of defendants plaintiff appeals.

Reversed.

Judgment reversed, and a new trial ordered.

Bosard & Bosard, for appellant.

If the same person is named as executor and also as trustee under a will, he may accept the one and decline the other. If he qualifies as executor and declines as trustee he will be chargeable as executor until the property is properly turned over to a qualified trustee. Gary's Probate Law, 741. An executor cannot convert himself into a trustee by a mere mental operation without an overt act. Herrick & Doxsee on Probate Law, 73; Hall v. Cushing, 9 Pick. 395; Prior v. Talbot, 10 Cush. 1; Conkey v. Dickinson, 13 Metc. 54; Newcomb v. Williams, 9 Metc. 525; Dorr v. Wainwright, 13 Pick. 328; Towne v. Amidon, 20 Pick. 535; Miller v. Congden, 14 Gray, 114; White v. Ditson, 140 Mass. 351, 4 N.E. 606, 54 Am. Rep. 473. Where the law gave to him two characters, those of executor and trustee, and the duties of the latter character were entirely distinct from, and independent of those of the former; where the same person is executor and trustee he must give a bond in his character as trustee before he can exonerate himself from his liability as executor. Dagget v. White, 128 Mass. 398; Groton v. Ruggles, 17 Me. 137; Williams v. Cushing, 34 Me. 370. Where one person is appointed by law as executor and trustee and fails to give bonds and to qualify as trustee, and a trustee is subsequently appointed he can recover the property in a suit on the executor's bond. Briggs Exr. v. Baptist Church, 8 A. 257; In re Higgins Estate, 28 L. R. A. 116, 39 P. 507; Ryan v. Kinney, 2 Mont. 454; Bellinger v. Thompson, 37 P. 744; Wilson v. Wilson, 17 Ohio St. 150, 91 Am. Dec. 125. Executors cannot discharge themselves of their official responsibility without doing some act to change the character of their holding and place the fund safely where it ought to be. Cranson v. Wilsey, 39 N.W. 9; Newport v. Hazard, 13 R. I. 1; Scituate v. Angel, 14 R. I. 495; State v. Branch, 134 Mo. 592; 56 Am. State Rep. 533. The sureties recognized the jurisdiction of the County Court in giving the bond so that McLaughlin could get letters testamentary, and they cannot question the jurisdiction of the court in this action, but are liable for his default. § § 6185, 6186, Rev. Codes; Green v. Wardwell, 17 Ill. 278; Peo. v. Norton, 9 N.Y. 176; Kelly v. State, 25 Ohio St. 567; Custer v. Albien, 64 N.W. 533; Lees v. Wetmore, 12 N.W. 241; Murphy v. Creighton, 45 Ia. 175; Shoenberger's Estate, 20 A. 1050; Fisher v. Bassett, 3 Am. Dec. 228; Deegan v. Deegan, 22 Nev. 185, 50 Am. State Rep. 742, Black on Judg. 271, Van Fleet on Coll. Att. § 841. The defendants cannot raise the objection that the court did not have jurisdiction to make the order. It is conclusive against the executor himself and the sureties on his bond. Bodrip v. Bodrip, 56 Cal. 563; Holland v. State, 48 Ind. 391; Gorton v. Botts, 73 Mo. 276; State v. Slauter, 80 Ind. 597; Wolfe v. Shaffer, 74 Mo. 154; Slagle v. Entrekin, 44 Ohio St. 637; Braden v. Mercer, 44 Ohio St. 338; Moulding v. Wilharte, 46 N.E. 189; Meyer v. Barth, 72 N.W. 748.

Corbet & Murphy, Templeton & Rex, for respondents.

The jurisdiction had and exercised by the County Court of Racine Wisconsin, was exclusive so far as relates to the matters attempted to be passed on by the County Court of Grand Forks county by the order here attacked. The property constituting this estate consisted of notes and cash, it could have not situs independent of the domicile of the owner. Cleveland, Etc., Ry. Co. v. Pennsylvania, 15 Wall. 300, 21 L.Ed. 179; Cooper v. Beares, 143 Ill. 25; Parsons v. Lyman, 20 N.Y. 103; In re Butler, 38 N.Y. 397; Putnam v. Pitney, 45 Minn. 242; Broughton v. Bradley, 73 Am. Dec. 480; Cutts v. Hoskins, 9 Mass. 543; Christy v. Vest, 36 Ia. 285. As executor of this will McLaughlin became at once invested with the title to all the personal property belonging to Wording at the time of her death. In re Butler, 38 N.Y. 397. The Wisconsin court by admitting this will to probate did the only thing necessary to vest and confirm in McLaughlin title to and power of disposition over this property. In re Butler, 38 N.Y. 397. The Wisconsin court has acquired jurisdiction, and that jurisdiction is exclusive and extends to the matter of accounting for personal property assets. Parsons v. Lyman, 20 N.Y. 103, Story's Conflict of Laws (8 Ed.) § 518; Fletcher v. Sanders, 32 Am. Dec. 96. The executor must account, at the domicile, for assets actually received by him in a foreign jurisdiction. In re Ortiz, 86 Cal. 306, 21 Am. St. Rep. 44; Fox v. Tay, 24 P. 855. An ancillary administrator can have no control over assets which are not subject to the law, under which he was appointed, and his surety will be liable only for his faithful administration of such assets as he had a right to receive. Fletcher v. Sanders, 32 Am. Dec. 96, Baldwin's Appeal, 81 Pa. 441; McCord v. Thompson, 92 Ind. 565. The liability of a surety on an executor's bond is not more extended. Fletcher v. Sanders, 32 Am. Dec. 96. Respondents are not estopped to deny the jurisdiction of the County Court. Douglas v. Ferris, 138 N.Y. 192; Nevitt v. Woodburn, 160 Ill. 203. The word jurisdiction in this connection means the power of the court to render the particular judgment entered in the particular case. Peo. v. Tweed, 60 N.Y. 559; Ex parte Page, 49 Mo. 291; Coe Brass Company v. Savlik, 93 F. 519; Belford v. Woodware, 41 N.E. 1097. It was not within the power of the County Court to bring the assets of this estate in controversy within its jurisdiction. The fact that these assets were within the jurisdiction of the Wisconsin court appeared upon the records of the Grand Forks County Court. This personality, which had its situs in Wisconsin, was beyond the jurisdiction of the Grand Forks County Court. Peo. v. Seelye, 146 Ill. 149; Probate Court v. Hazard, 13 R. I. 3. It is contrary to natural justice that the sureties on this bond should be estopped by a decree to which they were not parties, and of which they had no notice. Lipscomb v. Postell, 77 Am. Dec. 651; Gibson v. Robinson, 90 Ga. 756; Bird v. Mitchell, 28 S.E. 674; Moore v. Alexander, 1 S.E. 536; Tierney v. Phoenix Insurance Company, 4 N.D. 565. The will directed that the legacies and bequests should not be paid, but that the entire estate should be allowed to accumulate until the principal and accrued interest of mortgages and investments should be sufficient to pay all legacies and bequests. This constituted McLaughlin trustee. The duties of trustee were superadded to those of executor. Tracy v. Murray, 49 Mich. 35; Dunning v. Bank, 61 N.Y. 497; Greenland v. Waddell, 116 N.Y. 234; Ward v. Ward, 105 N.Y. 68; Hamm v. Hamm, 58 N.H. 70; Palmer v. Noyes, 48 N.H. 174; In re Besley, 18 Wis. 484; Allen v. Kennedy, 8 S.W. 882; Givens v. Flannery, 49 S.W. 182. Respondents are not liable for the several defaults of McLaughlin as trustee. § 4651 Rev. Codes; Woerner Administration, § 260; Hinds v. Hinds, 85 Ind. 312. A trusteeship is none the less such although the word trustee may not appear in the instrument creating it. Packard v. Old Colony Railway Company, 168 Mass. 92. In making the specific instruments McLaughlin acted as trustee and not as executor. Tracy v. Murray, 49 Mich. 55; Tobias v. Ketchum, 32 N.Y. 319; Robert v. Corning, 89 N.Y. 226; Simpson v. Cook, 24 Minn. 180; Ross v. Barclay, 18 Pa. 179; Hodgin v. Toller, 30 N.W. 1, 70 Ia. 21; Naundorf v. Schurman, 41 N.J.Eq. 14, 2 A. 602; Lanning v. Sisters, 35 N.J.Eq. 392; Clark v. Tainter, 7 Cush. 567; Levitt v. Wooster, 14 N.H. 550; Givens v. Flannery, 49 S.W. 182; Allen v. Kennedy, 8 S.W. 882. This plaintiff, as administrator de bonis non, the successor of McLaughlin, has the same power over this estate that McLaughlin as executor had, but plaintiff has no authority touching this trust as he did not succeed to any power or authority over this trust fund, it follows that McLaughlin as executor possessed none. Ross v. Barclay, 18 Pa. 179; Dunning v. Bank, 61 N.Y. 497; Lanning v. Sisters, 35 N.J.Eq. 392; Greenland v. Waddell, 116 N.Y. 234; Clark v. Tainter, 7 Cush. 567; Hodgin v. Toller, 30 N.W. 1. The time within which McLaughlin could legally act as executor under the will expired prior to the time of making the investments under consideration. § 3849 Wisconsin Statutes. The payments of the legacies was a duty imposed upon him as trustee and not as executor. Calkins v. Smith, 41 Mich. 409; Allen v. Kennedy, 8 S.W. 882. The presumption of law is that the executor settled up the estate within two years. Ingram v. Ingram, 4 Jones Law, 188; Carroll v. Bosley, 27 Am. Dec. 460. Where the same person is both executor and testamentary trustee, after the expiration of the statutory period, it is conclusively presumed that the property is held in the capacity of trustee. Wier v. Peo., 78 Ill. 192; Bell v. Evans, 94 Ill. 230; State v. Hearst, 12 Mo. 365; Carroll v. Bosley, 27 Am. Dec. 460; Jacobs v. Bull, 26 Am. Dec. 72; Able v. Brady, 28 A. 817; Wooley v. Price, 37 A. 644; Allen v. Kennedy, 8 S.W. 882; Givens v. Flannery, 49 S.W. 182. Where the same person is executor and testamentary trustee he will be held to hold the trust estate in his capacity as trustee, whenever and as soon as he manifests such intention by any authoritative act. Wilson v. Wilson, 17 Ohio St. 150; Cluff v. Day, 124 N.Y. 195; Cranson...