McKim v. Aulbach

• Decision Date: 04 March 1881
• Citation: 130 Mass. 481
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John W. McKim, Judge of Probate, v. Anton Aulbach & others

130 Mass. 481

John W. McKim, Judge of Probate, v. Anton Aulbach & others

Supreme Court of Massachusetts

March 4, 1881

Argued November 11, 1879

Suffolk.

Case Recommitted to the master.

J. G Abbott, (B. Dean with him,) for the plaintiff, cited some of the authorities referred to in the opinion, and Brice v Stokes, 11 ves. 319; Sadler v. Hobbs, 2 Bro Ch. 114; Williams v. Nixor, 2 Beav. 472; Crosse v. Smith, 7 East, 246; Moses v. Levi, 3 Y. & C. Exch. 359; Clark v. Clark, 8 Paige 152; Ames v. Armstrong, 106 Mass. 15.

A. Russ & D. A. Dorr, for the defendant, further cited Doyle v. Blake, 2 Sch. & Lef. 230; Westley v. Clarke, 1 Eden 357, and 1 P. Wms. 83; Churchill v. Hobson, 1 P. Wms. 241; Walker v. Symonds, 3 Swanst. 1, 64; Knight v. Plymouth, 1 Dickens 120; Bacon v. Bacon, 5 Ves. 331; Powell v. Evans, 5 Ves. 839, 843; Towne v. Ammidown, 20 Pick. 535; Abbott v. Fisher, 124 Mass. 414; Gaultney v. Nolan, 33 Miss. 569; Williams v. Maitland, 1 Ired. Eq. 92, 106; Perry v. Maxwell, 2 Dev. Eq. 488; Whitted v. Webb, 2 Dev. & Bat. Eq. 442; Doud v. Sanders, Harp. Eq. 277; Thompson v. Brown, 4 Johns. Ch. 619, 628.

Colt, J. Morton, Soule & Field, JJ., absent.

OPINION

Colt, J.

The defendant is sued upon a probate bond, given by him as one of two executors. A judgment having been ordered for the penalty of the bond, the question before us is how much of the penalty is due in equity and good conscience, for which an execution should be awarded. Several breaches of the bond are assigned. Upon two of these, namely, the failure to file an inventory, and the failure to render an account within a year, the defendant is liable for nominal damages.

The principal question arises on an alleged breach by the defendant, in negligently permitting his co-executor Wellbrock to appropriate the personal estate of the testator to his own use, whereby it was lost. The bonds given by the two executors were several and not joint, and neither is liable for losses caused exclusively by the default of the other. In order to charge the defendant, the burden is on the plaintiff to show that, in the administration of the estate, the defendant was negligent in the performance of some duty which the law devolves upon him personally. Austin v. Moore, 7 Met. 116, 124.

A mortgage due to the testator, in the State of Ohio, which by his will the executors were authorized to collect and invest as they might judge to be for the interest of the estate, was collected upon a joint release and discharge, signed by both executors, which was forwarded to the mortgagor through an express company. The money when returned by the express company was received by the co-executor Wellbrock without the defendants' knowledge, and deposited by him in a savings bank in good standing, partly in his own name and partly in his name as trustee. He afterwards took the money from the bank without the knowledge of the defendant, and it was lost to the estate by his misappropriation of it. It is sought to charge the defendant for the loss of this money.

The report finds that Wellbrock had almost exclusive management of the estate; that he was a neighbor and friend of the testator, and had relations more intimate than the defendant with parties interested under the will; and that the defendant was not familiar with laws and forms of business, or with the English language, and was content to leave the business in the hands of his co-executor. It appears that the defendant accounted for all the estate which actually came into his individual possession. In their first account, which was filed, assented to by the parties in interest, and allowed, after the mortgage was collected, the executors charged themselves with the amount paid thereon; and in a few days after it was allowed, the defendant resigned his trust. Two other accounts were afterwards filed by Wellbrock, the remaining executor, which were assented to by the parties in interest, by which he charged himself with the amount collected on the Ohio mortgage.

It was the right of each executor to receive and hold the funds of the estate. Edmonds v. Crenshaw, 14 Pet. 166. Neither can be held responsible for the waste or misconduct of the other, unless there be some act or agreement, on the part of the one sought to be charged, by which the estate has gone into, or has been negligently suffered to remain in, the exclusive possession and control of the one by whose misconduct the loss occurs. Thus both were held liable in a case where money was delivered to one executor, and immediately handed over to the other, who appropriated it to his own use. Langford v. Gascoyne, 11 Ves. 333. But an executor is not held any farther than he is shown to have participated in the misappropriation. "Merely permitting his co-executor to possess the assets, without going farther and concurring in the application of them, does not render him answerable for the receipts of his co-executor. Each executor is liable only for his own acts, and what he receives and applies, unless he joins in the direction and misapplication of the assets." Peter v. Beverly, 10 Pet. 532, 562. Brazer v. Clark, 5 Pick. 96, 104. Sterrett's appeal, 2 P. & W. 419.

It is contended that the defendant is liable in this case, because he must be treated as having concurred in the wrong, by joining in the release by which his co-executor was enabled to obtain possession of the money due on the mortgage and to mingle it with his own property. The rules which govern the liability of co-executors follow in most respects the rules which prevail as to co-trustees. But, while the latter are not liable for the money which they have not received although they join in receipts given for the same, it was at one time held that the former were liable in such cases. The...