Protective Check Writer Co., Inc. v. Collins

• Decision Date: 06 January 1942
• Docket Number: No. 3279.,3279.
• Citation: 23 A.2d 770
• Parties: PROTECTIVE CHECK WRITER CO., Inc. v. COLLINS et al.
• Court: New Hampshire Supreme Court

23 A.2d 770

PROTECTIVE CHECK WRITER CO., Inc.

v. COLLINS et al.

No. 3279.

Supreme Court of New Hampshire. Hillsborough.

Jan. 6, 1942.

Exceptions from Superior Court, Hillsborough County; Connor, Judge.

Assumpsit by the Protective Check Writer Company, Incorporated, against Theodore Collins and trustees, wherein a verdict against principal defendant for $1,785 was established, and the plaintiff sought to have one of the trustees charged in trustee process. The trial court charged one of the trustees for $300 as the only liability upon the trust process, and both the plaintiff and the trustee charged bring exceptions.

Trustee charged for full amount of plaintiff's judgment against defendant.

Assumpsit. A verdict against the principal defendant for $1,785 has been established. The plaintiff seeks to have one of the trustees charged in trustee process. The two trustees were summoned as the administrators of an estate of a decedent of whom the principal defendant is an heir. After service of the process upon them they paid the principal defendant $300 towards his share as an heir. Later a claim of the estate against another heir was settled by an agreement pursuant to which certain securities were placed in the hands of a third person who distributed their proceeds directly among all the heirs according to the agreed division. The heirs are six in number and the two trustees are among the number.

At the time of the hearing to determine the chargeability of the trustees, both administrators had resigned and an administrator de bonis non had been appointed in their place.

Upon the hearing the court (Connor, J.) charged one of the trustees for $300 as the only liability upon the trustee process. The plaintiff excepted to the denial of its motion to set aside the finding in limiting the chargeability to that amount, and the trustee charged excepted to the denial of her motion to be discharged from any liability.

Further facts appear in the opinion.

Wason, Guertin & Leahy, of Nashua (A. A. Guertin orally), for plaintiff.

Sullivan & Dolan, of Manchester (Thos. E. Dolan, of Manchester, orally), for Mrs. Ney, the trustee charged.

Warren, Wilson, McLaughlin & Wiggin, of Manchester, for principal defendant, filed no brief.

ALLEN, Chief Justice.

Mrs. Ney's motion to be discharged as a trustee if the cotrustee was not charged was properly denied. The record is singularly inconsistent in its conflicting statements that the hearing was on the chargeability "of the trustees" and only on that of Mrs. Ney. But as she alone was charged, while the evidence at least in respect to the payments of $300 to the principal defendant, demonstrates that both administrators were equally participants in making the payments, it is assumed that the hearing was only on the chargeability of Mrs. Ney, leaving that of her co-administrator undetermined.

While the law takes the view that co-representatives of a decedent's estate are an entity of one person, making the acts of one with certain equitable exceptions, the acts of the others, yet each is liable for his own acts. The trustee process is a form of attachment creating a lien on "any money, goods, chattels, rights or credits" of the principal defendant in the trustee's possession, with certain exemptions not here in issue. P.L. c. 356, § 19. The trustee is chargeable for all of such property in any of its forms as he had in his possession when served with process and as later coming into his possession within the time in which his chargeability may be determined. He is there fore held on a claim unliquidated when he is summoned if the claim becomes liquidated by the time of hearing upon his chargeability. The effect of the administrators' disregard of the trustee process in paying money to the principal defendant was to impair the lien created by the process. They violated a statutory obligation, and their wrong is more consistently classified as a tort than as a breach of contract. On a joint liability for tort, one or more of the wrongdoers may be sued without suing all. In other words, the liability is several, as well as joint. While the act of one is the act of all, it continues to be the act of one. In respect to wrongful conduct of co-representatives other than for breach of contract, the conception of their union as one legal person is not carried to the extreme that they can be only under joint liability. 11 R.C.L. 409; 21 Am.Jur. 805; 34 C.J. 1189, et seq.; Scholer, Wills, 5th Ed., §§ 1402, 1403a.

The cases of Barker v. Garland, 22 N. H. 103, and Treadwell v. Brown, 41 N.H. 12, are not in point. In the Barker case the court stated by way of dictum the rule that when the obligation to the principal defendant is upon a joint contract, all of the joint debtors must be made parties as trustees. The dictum doubtfully states the law that they must all be parties if their liability is several as well as joint. In the Treadwell case it was held that a co-partner could not be held by trustee process as a debtor of his co-partner unless the debt is established by a settlement of the partnership affairs. The plaintiff's remedy, as the court stated, is by bill in equity to reach the principal defendant's interest.

The claim of the estate to the property in the possession of one of the heirs was at all times until the compromise agreement in the control of the administrators, and the fact that they did not gain possession of the property is immaterial. They settled the claim, and for the amount of the settlement they are accountable. The value of the claim rather than of the property claimed is to be determined. The administrators received and had full charge and control of the claim as an asset of the decedent's estate.

Mrs. Ney's chargeability upon the claim depends upon its liquidated value at the time of the hearing upon her chargeability. It is argued for her, in effect, that either it had no value or its value could not be shown, as to any interest of the estate. This claim rests upon a construction of the compromise agreement by which a surrender of all interest of the estate in the claim was made with no real consideration received by the...