Monroe v. James

• Decision Date: 11 February 1814
• Citation: 18 Va. 194
• Parties: Monroe, Executor of Jones v. James
• Court: Virginia Supreme Court

18 Va. 194

Monroe, Executor of Jones v. James

Supreme Court of Virginia

February 11, 1814

Argued January 20, 1814

In this case, (which was an action of detinue in behalf of the appellant against the appellee,) the following case was agreed by the parties; viz. that the negro woman slave in the declaration mentioned, was the property of Joseph Jones senior, deceased, at the time of his decease, and subject to the disposition of his last will and testament, set forth in haec verba; the executors appointed therein being James Monroe, Joseph Jones, the testator's son, and others that the defendant bought her, for valuable consideration from one George Legg, who bought from Joseph Jones, jun deceased, (named one of the executors in said will,) for valuable consideration, after the said Joseph Jones, jun. had attained the age of twenty-one years, and after the said will was duly proved and recorded; he, the said Joseph Jones, jun. now deceased, not having then, or after, qualified as executor under said will; that no other person had qualified as executor of said Joseph Jones, sen. or taken out letters of administration on his estate, at the time of the sale of the said negro woman by Joseph Jones, jun.; that the plaintiff is the only regularly qualified executor of said Joseph Jones, sen. deceased; that the negro slave in the declaration mentioned, is in the defendant's possession, and was so at the time of institution of the suit; and that demand of her was duly made before said institution.

The following clause in the will related to the subject of the present controversy: " I give and devise unto my son Joseph Jones, and his heirs and assigns, all my estate real and personal.In case he shall die before he arrives to lawful age, or, being of lawful age, shall die without a child or children to inherit the estate hereby given to him, it is my will that the same shall, after his death, be divided between the children of my late sistersEsther Tyler and Elizabeth Monroe now living, allowing my nephew colonel James Monroe the first choice."

A verdict was found for the plaintiff, subject to the court's opinion upon the case agreed.The court entered judgment for the defendant; whereupon the plaintiff appealed.

Hay for the appellant.

Standard for the appellee.

Judge Coalter.Judge Cabell.Judge Fleming.

OPINION

Judge Coalter

Friday, February 11th, 1814, the Judges (COALTER, CABELL, and FLEMING) delivered their opinions, seriatim.

JUDGE COALTER.In England an executor, before probat, may do almost everything which he can do afterwards.^[a]He may take possession of the goods, pay and receive debts, make acquittances and releases of debts, take releases, sell, or give away the goods, assent to legacies, & c.; and these things do not require a subsequent probat to confirm them for, if he die after any of these acts done, and before probat, yet they stand good.^[b]He may sue and be sued, but cannot declare until probat: --he may file a bill, and it will be good if he takes probat before trial.These are the only acts which I can discover, which require a probat to enable him as effectually to do, as though the probat had been taken.Nay, where A, B, and C. are executors, and A. refuses, and B. and C. take probat, there A. continueth executor notwithstanding his refusal, (the will being proved in the names of all,) so as he still may release debts due to the testator, and B. and C. cannot maintain suit in their names alone, but must join A. also: --the probat in fact enures to him, and he may administer thereafter at his pleasure, and intermeddle with the goods, as well as the others; and if he survives, he will proceed with the administration, as I understand.

The reason of all which is, that there an executor may undertake the trust reposed in him, as well by acts in pays, signifying his consent to do so, as by taking probat before the ordinary; and ^[c] every act of administration or intermeddling with the estate, even in a slight degree, makes him executor, and he cannot afterwards refuse, but must proceed to execute the will: --he can be sued as executor, and if he pleads that he neither is executor, nor ever did administer as executor(which is the common plea to free himself in such case,) it will be found against him, on such intermeddling being proved.The goods of the testator are considered his property from the death of the testator; ^[d] and before probat he may maintain trespass, replevin or detinue, for goods taken or trespass done, after the death of the testator; for these actions arise on his own possession.

There, too, the probat, as well as the refusal, have relation to the death of the testator.As where administration had been committed before any will proved or notified to the ordinary, and the administrator sold some of the goods, the executor brought detinue for these goods, and recovered them.

And a refusal shall have a like relation, so that the administrator may have an action of trespass for goods taken before administration committed.

In this country, the executor is to take an oath, and give bond and security, in every case except where by the will it is dispensed with, and there too, if the court think proper to require it.Whereas, in England, he gave no bond, except where a Court of Chancery, to prevent fraud, should interpose and require bond, or where the testator, by his will, made an executor conditionally, that he put in security, and then be executor.^[e]

The Statute of 10 Ann. ch. 2, sect.12, ^[f] was the first law requiring security in this state; and that did not require it generally, but only in such cases where the court should have reason to suspect that an executor might act fraudulently; and which provides that such a failure to give security should be construed a refusal to act as executor, and that administration cum testamento annexo might, thereupon, be granted.This statute has a proviso substantially the same with that of 22 Geo. 2 ch. 5, hereafter mentioned, as to the power of the executor before probat, or administration, as aforesaid.

This latter statute^[g] requires bond and security to be given generally, as first above stated; and in the 21st section is the following proviso; " that nothing herein contained shall be construed to abridge or restrain the power of executors over their testator's estates, until probat of the will, or administration with the will annexed, be obtained or granted; but they may possess themselves thereof, and till then execute their trust, as fully and amply as if this act had never been made."

This act also provides that a failure to give security shall amount to a refusal of the executor to act.

The question is, what effect this act, together with the exception, or proviso, had on sales made by the executor thus required to give bond, and who, in fact, never did give such bond; the act of 1785 simply continuing the power of executors before probat, as heretofore.

Under the first statute above mentioned, where the court, suspecting fraud, required security, could it have been intended that the executor, notwithstanding such requisition, might sell, give away, and waste the whole estate, and in fact commit the very fraud intended to be guarded against; so that there would be a dry and naked administration only to be granted?Suppose bond to be required in England by a Court of Chancery, would a sale, after the decree, be good, the executor never giving bond?Must not the purchaser notice this decree, and buy at his peril?But here, security is required by law, which is notice to all the world.If there are two or more executors in this country, and one refuses to give bond, and the other takes probat, can the refusing executor, who never gives bond, sell and dispose of the estate, as in England he may do?

It appears to me that the proviso must either destroy the great objects of the law, or be itself declared void as contravening those great objects; or such a construction must be given that both can, with reason and propriety, stand.

The statute in this country most materially innovates on the common law doctrines above noticed, in one great and important point, a proper consideration of which, I think, will aid much in guiding us in this enquiry.

By those doctrines, an executor once intermeddling with, or administering, in the smallest degree, the assets, takes upon him the executorship, and he can never afterwards refuse.Here the very clause requiring bond, and the proviso under consideration, suppose an intermeddling by the executor before bond given, by the terms of which he is to account for the assets that have or may come to his possession; yet the refusal to give that bond shall here be a refusal of the executorship, and administration may be granted; but refusal, as well as probat, relates to the death of the testator, who, on such refusal, is supposed to die intestate, as to the appointment of executors, and therefore the person named as such stands as having never been executor.I suppose it is for this reason, probably, that a refusing executor does not join in a suit, and is not sued, in this country.From this it would seem to result, that a qualification, and giving bond, are annexed, in all cases, by law, (as it may in England, by the will itself,) as conditions preceding the full right of the executor finally to act; and that, consequently, a probat, according to our law, will be necessary to confirm mesne sales, & c. made before such probat.

By the proviso, he may possess himself of the goods, and proceed to execute the trust.How?By wasting and giving away the goods?Surely not: --such acts would not be in execution, but in fraud of the trust.Our law does not direct a sale even of...