Scarborough v. Watkins

• Decision Date: 25 September 1849
• Citation: 48 Ky. 540
• Parties: Scarborough v. Watkins and Wife.
• Court: Kentucky Court of Appeals

48 Ky. 540

Scarborough v. Watkins and Wife.

Court of Appeals of Kentucky.

September 25, 1849

Administrators. Conveyances. Husband and wife. Registry of deeds.

APPEAL FROM THE DAVIESS CIRCUIT.

J & W. L. Harlan for appellant.

Robertson for appellees.

OPINION

SIMPSON JUDGE.

THE plaintiff in error questions the correctness of the decree of the Court below, in settling his accounts as administrator de bonis non of Philip Thompson, deceased, and also administrator of Sally Thompson, deceased, the widow of said Philip Thompson.

An administrator who neglected, for more than two years, to collect a debt due to his intestate, held accountable to distributees.

1. He insists that he has been unjustly held accountable for a debt on Mosely, due to his intestate. He rests his exemption from liability for his debt, on the ground that Mosely was the uncle of the children of his intestate, and he was requested by them not to use coercive measures for its collection; in consequence of which he indulged the debtor until, by his insolvency, the debt was lost. There is no testimony however, that such a request was made, and as there is no controversy in regard to the ability of Mosely to have discharged the debt, during a period of almost two years after the time that the note came into the hands of the administrator, he was justly held liable to the distributees for its amount.

2. He was charged with a debt that he failed to collect due to his intestate, by a man named Crow. He attempted to prove by Crow, that he had a set-off against the debt sufficient to cover its whole amount; and he relied upon this evidence to discharge him from liability for the debt, on account of his failure to enforce its collection, whilst Crow was able to have paid it. If it be conceded that Crow's testimony was competent, for the purpose for which it was offered, still it does not satisfactorily appear by his evidence, that he did not justly owe the debt. His testimony is not explicit; it is vague and unsatisfactory, both as to the character and amount of the alleged set-off. Considering the uncertain and indefinite character of the evidence, in connection with the fact that the pretended set-off originated before, and not after, the execution of the note, and its correctness is, therefore, repelled by the note itself, it seems to us that the conduct of the administrator in reference to the debt, was such as to subject him to its payment.

An administrator held accountable to distributees for failing to collect a debt, when he alleged and failed to show there was a valid set-off against it.

3. Sally Thompson, the widow of Philip Thompson, deceased, administered on his estate, and, during her lifetime, employed the plaintiff in error, who had married one of her daughters, to assist her in the management of her intestate's estate. For his services in this respect, he claimed six per cent. upon the money collected by him, which he alleged to be upwards of twelve thousand dollars. His claim was disallowed. In this particular, he insists that great injustice has been done him. It appears in proof, that, after his marriage, his wife and himself lived with his mother-in-law, and he devoted a portion of his time to assisting her in attending to her business as administratrix, but still followed his usual avocation. There is no evidence of the amount of money collected by him, or of any agreement, by which he is entitled to a compensation of six per cent. on his collections. But there is evidence of a contract that he was to be compensated for his trouble. It is contended, that the board of himself and wife was a sufficient equivalent for all the services rendered by him. His mother-in-law, however, may not have contemplated any charge against him on this account, and even if it were to be taken into consideration, in placing an estimate upon his services, the proof shows that the services were worth more than the boarding of himself and wife. We think, therefore, that, although the claim was not sustained to its full extent, that it should not have been wholly disallowed. The sum of three hun dred dollars would be, according to the testimony, about a reasonable compensation for the services rendered by him, taking into consideration the fact that, whilst he was so employed, his wife and himself were boarded by Mrs. Thompson.

An administrator de bonis non allowed a compensation for services rendered in the management of the business of the estate of the former administrator.

4. The administrator was charged with a debt on Watson, which had not been collected, although it was in the process of collection. There is no imputation of negligence on the part of the administrator in attending to the collection of the debt, nor any reason manifested why he should be held accountable for it. He was charged with it because it was supposed that it would be collected. It is not positively certain that it will be; if it should, however, it will then be his duty to pay it to the distributees; but it is not just or proper, under the circumstances, that he should be compelled to pay it, before he receives it, and it would be still more unjust to require him to do it, if it should be eventually lost.

It is improper to charge an administrator with a debt which is in process of collection, when he has not been guilty of neglect in proceeding in its collection.

5. Mrs. Thompson, as administratrix, had hired a negro girl to a man by the name of Smith, who had failed to comply with the terms, by executing a note, with good security, for the hire. Smith, however, obtained possession of the slave, and retained her under the contract, notwithstanding this failure upon his part, and died before the expiration of the year insolvent. Mrs. Thompson died during the year, and the plaintiff in error, who was appointed administrator of her estate, and administrator de bonis non of the estate of Philip Thompson, deceased, about five months after Smith hired the slave, and got her into possession, was held responsible for this hire. This was evidently wrong. If Mrs. Thompson might have regarded the contract of hiring void, because the hirer had failed to comply with the terms, yet, as she had not done so, but permitted Smith to have possession of the slave, from which the presumption arises, that she had waived a compliance by him with the terms, it would have been a hopelesss undertaking, upon the part of the plaintiff in error, to have forced Smith to surrender the possession of the slave. It was upon the supposition that it was his duty to have done this, he was held liable for the hire. The slave had been hired for the year, and as administrator de bonis non, he had no control over her. Mrs. Thompson was, no doubt, liable for the hire, having permitted Smith to take the slave without any security for its payment; but her liability was a charge upon her estate, and did not devolve personal liability upon her administrator. But even admitting that, after the death of Mrs. Thompson, the plaintiff in error had a right, upon becoming her administrator, to treat the contract of hiring by Smith as void, still, if he had resorted to a suit to obtain possession of the slave, it is, at least, problematical whether he would have succeeded in the accomplishment of the object, before the end of the year. There is, therefore, no plausible pretext for holding him liable for this hire.

An administrator de bonis non is not bound to take possession of slaves hired out by a former administrator, though the terms of sale have not been complied with; nor is he accountable to distributees for the hire if it be lost by the insolvency of the hirer.

The most important question, however, in this case, arises upon the defendant's cross errors.

The plaintiff in error had married one of the daughters of Philip Thompson, deceased. His wife, a few years after their intermarriage, died without issue. She inherited from her father, and also from two of her brothers, who died in infancy, and without issue, a considerable real estate, some of which was situated in Daviess county, where she and her husband resided, and the remainder in other counties in this State. In 1846, her health being bad, and her recovery considered hopeless by herself and friends, she, in conjunction with her husband, executed deeds, conveying all her real estate to S. M. Wing, who, immediately thereafter, re-conveyed the same to her husband.

The deeds executed to Wing, each contain a recital substantially in the following language: " Whereas, the said Emily Scarborough is anxious and determined to vest the whole legal and equitable title to the lands and lots hereafter described, in the said George Scarborough, her husband, the title to which said lands descended to, and vested in her, as one of the co-heirs of Philip Thompson, deceased, her father, and of her infant brothers; and to effect that object, has determined to convey said lands and lots to the said Samuel M. Wing, the party of the second part, with the intent and object, that he may and shall re-convey the same to the said George Scarborough, in fee simple." These deeds were acknowledged by Scarborough and wife, before the Clerk of the Daviess County Court, in due and legal form, and recorded in his office on the 16th day of February, 1846, the day on which they bear date. But they were not recorded, or lodged for record, in the other counties in which the lands conveyed are situated, until more than a year afterwards.

One object of the present suit was, to have a division of the real estate of Philip Thompson, deceased, among his heirs. Emily Scarborough left a brother and several sisters alive at the time of her death, who claimed her share, as her heirs at law; it...