National Exchange Bank of Boston v. McLoon

• Citation: 73 Me. 498
• Parties: THE NATIONAL EXCHANGE BANK OF BOSTON v. SILAS W. MCLOON, and HENRY SPALDING and J. FRED MERRILL, trustees; DYER AND GURNEY, claimants.
• Decision Date: 29 May 1882
• Court: Maine Supreme Court

73 Me. 498

THE NATIONAL EXCHANGE BANK OF BOSTON v. SILAS W. MCLOON, and HENRY SPALDING and J. FRED MERRILL, trustees; DYER AND GURNEY, claimants.

Supreme Judicial Court of Maine.

May 29, 1882

ON REPORT.

Assumpsit for money paid and expended. The writ was dated May 10, 1876 and served on the alleged trustees on the same day.

The question presented to the court related to the disposition of the funds in the hands of the trustees. The facts shown by the disclosure are sufficiently stated in the opinion.

The assignees of a portion of the funds in the hands of the trustees appeared and claimed the funds. They were admitted as parties to the suit and filed allegations setting up the following assignment:

" Whereas, William McLoon of Rockland, in the State of Maine was the owner of the ship Louisa Hatch, which was captured by the Confederate Steamer, Alabama, during the late war between the United States and the Southern Confederacy, so called.

And whereas, said William McLoon died in April, 1871, leaving Silas W. McLoon, his son, and one of seven heirs to his estate.

Now therefore, I, said Silas W. McLoon of Rockland, in the county of Knox and State of Maine, in consideration, five thousand and five hundred dollars to me paid by Edwin Dyer and James Gurney of Boston, in the commonwealth, co-partners under the name of Dyer and Gurney, the receipt of which is hereby acknowledged, do hereby assign, transfer, and convey to said Dyer and Gurney, and their heirs and assigns, all my claim and demand of every name and nature, for damages, compensation and remuneration, for the destruction of said ship Louisa Hatch, due from, or to be paid by the United States, or the administrators of my father's estate, or any and all other persons, and all sums of money due, or to be paid therefor; meaning hereby to assign and convey to said Dyer and Gurney, all the right, claim and demand to which I am, or may be entitled to, as heir at law of said William McLoon, and arising from, and growing out of the destruction and loss of said ship.

And I hereby authorize said Dyer and Gurney, and their heirs and assigns, to use my name in such manner as they may find necessary to prosecute, collect and receive said claim, and to compound and receipt for the same.

The same to be held and enjoyed by said Dyer and Gurney and their executors, heirs, administrators and assigns, to the same extent I could have done, had this instrument not been made.

Witness my hand and seal this seventh day of May, A. D. 1875."

Signed, sealed, witnessed and acknowledged before a justice of the peace.

The following were the terms of the report:

" This case is taken from the jury and reported to the law court, and that court is to determine the validity of the claim made by the claimants, and also whether the trustees are chargeable. If the claim of the claimants is sustained, the case is to stand on the docket at nisi prius to enable the trustees to determine the amount for which they are chargeable. All evidence is subject to any legal objection as if properly made when offered."

A. P. Gould, for the plaintiff.

The assignment, Silas W. McLoon to Dyer and Gurney was void in law for many reasons.

It conveys " all my claim for damages and compensation for the destruction of the ship Louisa Hatch, to be paid by the United States government, or the administrators of my father's estate." He had no such claim. He had no interest in the ship; and at the time of the assignment he had no claim against the administrators, except for his distributive share of his father's estate.

A declaration of the meaning or intention of a grantee, does not enlarge the grant, only to explain it, and if the terms are not sufficient without the explanatory clause, nothing passes. Hence the expressed intention " to assign all the right, claim and demand to which he is entitled as heir of William McLoon arising out of the destruction of the ship," conveyed nothing.

The most favorable view which can be taken for the assignees, is, that the defendant undertook to assign one-seventh part of the money which the administrators might receive on the Alabama claim for his father's eighth part of the ship.

It amounts to this, one of seven heirs undertakes to assign his interest in a chose in action which belonged to his father's estate, an estate of over four hundred thousand dollars, with many choses in action due to it, some of which were unsettled at the time of the assignment.

It would be vain to look for authority to sustain such an assignment.

Even an assignment of an aliquot part of his distributive share of his father's estate, would have been void in law without the assent of the administrators and a promise on their part; and for a much stronger reason an assignment of what he supposed would be his share of a single chose in action, then due to his father's estate, would be void. Getchell. v. Maney, 69 Me. 442; Gibson v. Cooke, 20 Pick. 15; Robbins v. Bacon, 3 Me. 346; Manderville v. Welch, 5 Wheat. 277; 2 Kent's Com. (7th ed.) 688, note e ; Tierman v. Jackson, 5 Peters 480; Drake, Att. § 611, and cases cited.

The case of Gibson v. Cooke, supra, goes on all fours with the case at bar; and, approved as it is by our court, is decisive.

In that case, the trustee under the will of the plaintiff's mother stood in precisely the same relation to the assignor as the trustees in this case stood to the defendant at the time of the attempted assignment. The reason for rejecting the assignment in that case applies much more strongly to this one, because if the assignment is valid, the administrators would be compelled, not only to open an account and settle with the several persons, but also with individual claims due to the estate, which would much increase the hardship on them.

If an heir at law can assign to one person his interest in one particular claim due to his ancestor's estate, he can assign his interest in each and every claim due to the estate to as many different persons. This would compel the administrators to keep complicated accounts and answer to the suits of many different persons.

The assignment was void because not executed according to the laws of the United States. R. S., U. S. § 3477; Trist v. Child, 21 Wall. 441; United States v. Gillis, 95 U. S. (5 Otto,) 407; Becker v. Sweetzer, 15 Minn. 427; Creighton v. Black, 2 Mon. Ter. 354.

The question here is as to the effect of the assignment upon the legal liability of the administrators, not how the assignor would be affected. And the following cases are not in point: Wood v. Wallace, 24 Ind. 226; Patten v. Wilson, 34 Pa.St. 299; Lowery v. Steward, 25 N.Y. 239; Parker v. Syracuse, 31 N.Y. 376; Algar v. Scott, 54 N.Y. 14; Simpson v. Bibber, 59 Me. 196.

It is claimed that the assignment is good in equity. There is no distinction between actions at law and suits in equity, in the protection which courts afford to assignments. Courts of law in this State " in all cases uphold and protect the equitable interests of the assignee." Pollard v. Ins. Co. 42 Me. 221.

Would a court of equity compel these administrators to open an account to as many persons as each heir chose to assign some portion of his share? A fortiori, would the court require them to subdivide every claim due to the estate? None of the authorities justify the assertion that a court of equity would compel the administrators to do all this. Ex equo et bono, it could not be required.

In no event can the assignment cover the claim for any part of the vessel which his father did not own. Seven-eighths of the net amount of the Alabama claim comes into the hands of these administrators as cash from the estate of the son and not in payment of a claim of this estate against the government.

Orville D. Baker, (Joseph Baker with him,) for the claimants, cited: Brooks v. Cook, 8 Mass. 246; Waite v. Osborne, 11 Me. 185; Kimball v. Woodman, 19 Me. 200; Dicey on Parties, rule 45, p. (221,) (319); 2 Chitty Pl. 16th Am. ed. 119, obs. See Farwell v. Jacobs, Admr. 4 Mass. 634; Prescott v. Morse, 64 Me. 422; 2 Wm's Ex'rs, 6th ed. 1803; Hutchinson v. Sturges, Willes, 261, 3; Wood v. Wallace, 24 Ind. 226; Patten v. Wilson, 34 Pa.St. 299; Lowery v. Steward, 25 N.Y. 239; Parker v. Syracuse, 31 N.Y. 376; Alger v. Scott, 54 N.Y. 14; Caldwell v. Hartupee, 70 Pa.St. 74; Simpson v. Bibber, and Tr. 59 Me. 196; 2 Story Eq. Jur. § 1044; Row v. Dawson, 1 Ves. 431; Yeates v. Groves, 1 Ves. Jr. 281; Ex-parte Alderson, 1 Madd. 39: Ex-parte South, 3 Swanst. 392; Lett v. Morris, 4 Sim. 607; Moody v. Kyle, 34 Miss. 506; Supt. Pub. Schools v. Heath, 15 N.J.Eq. 22; Pomeroy v. Life Ins. Co. 40 Ill. 398; Caldwell v. Hartupee, 70 Pa.St. 74; Pollard v. Ins. Co. 42 Me. 225; Jordan v. Parker, 56 Me. 557-8; Buffington v Gerrish, 15 Mass. 156.

PETERS J.

It appears, from the facts in this case, that William McLoon and his son, Charles William McLoon, were the owners of a ship destroyed by the confederate cruiser Alabama, the former owning an eighth and the latter seven- eighths thereof; that soon after the loss of the ship the son died intestate, the father being his sole heir; that soon after the son's decease the father died intestate; that his administrators, who were also administrators upon the estate of the son, petitioned the court of commissioners upon the Alabama claims, to recover the value of the vessel, her freight and fittings, setting forth all the claims for the father and son in a single petition, and recovering accordingly; that during the pendency of the petition, Silas W. McLoon, another son of William, and as such entitled to one-seventh of his estate, assigned his share of the funds, to be received by his father's administrators for the loss of the ship,...