State ex rel. Townshend v. Meagher

• Decision Date: 31 August 1869
• Citation: 44 Mo. 356
• Parties: STATE OF MISSOURI ex rel. E. TOWNSHEND, Adm'r, Plaintiff in Error, v. J. G. MEAGHER et al., Defendants in Error.
• Court: Missouri Supreme Court

44 Mo. 356

STATE OF MISSOURI ex rel. E. TOWNSHEND, Adm'r, Plaintiff in Error,

v.J. G. MEAGHER et al., Defendants in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

Vories & Vories, for plaintiff in error.

I. This suit is founded upon a contract, viz: the bond of the administrator. By the terms of that contract he is bound to pay over the money at all events, and public policy would forbid his discharging his obligation by showing that the money had been lost. This is the case with all officers who voluntarily assume a trust under a bond like the present. (Haller v. The State, 22 Ind. 125; Thompson v. Board of Trustees, 30 Ill. 99; U. S. v. Prescott et al., 3 How. 578; 12 Cush. 144; Commonwealth v. Cowley, 3 Penn. St. 372; and cases cited in the foregoing cases.)

II. The personal property of the deceased, and all moneys coming into the hands of the administrator which belonged to the deceased, vest in the administrator, and become his property in law; hence he can not hold such money as a bailee. (Henry, Adm'r of Doty, v. Dutcher, 15 Mo. 89; Abbott v. Miller, 10 Mo. 141; Thomas v. Relfe, 9 Mo. 373; Lacompte v. Seargent, 7 Mo. 351; Hall v. Harrison, 21 Mo. 227.)

III. The exception in the statute (Gen. Stat. 1865, ch. 144, § 1) includes such a case as this.

Harlan, and Kelly & Giddings, for defendant in error.

I. Exceptions to general rules are to be strictly construed; and, in this case, unless the evidence offered comes clearly within the exceptions named in section 1, chapter 144, Gen. Stat. 1865, it ought to have been admitted. (40 Barb. 537; 45 Barb. 397; 20 Ind. 513, 264; 24 Ind. 68; 23 U. S. Dig. 597-98; 24 Ind. 656.) Meagher was clearly a competent witness within the intention and spirit of the law.

II. The property, money, and effects of the decedent do not belong to the executor or administrator in his own right; he holds them in trust for the heirs and creditors. (32 Mo. 431; 23 U. S. Dig. 256, § 24; 2 Am. Ch. Dig. 575 et seq.;36 Penn. St. 174; 21 U. S. Dig. 257; 33 Barb., N. Y., 327; 21 U. S. Dig. 257, § 40.) He is simply a trustee, and is not to be held responsible as an insurer. Good faith and ordinary diligence and care are all that are required of him; and if the moneys or effects of the estate be lost or stolen, where he has exercised ordinary care, he is not liable. (3 Abb. N. Y. Dig. 88, § 293; id. 89, § 305; 7 id. 303, § 33; 3 Lead. Cas. in Eq., 3d ed., Hare & Wallace's notes, pp. 441, 445, 468; 4 J. C. R. 619; 45 Barb. 192; 4 Johns. 446; 31 How. Pr. 55; 1 Caines, 96.) The law of bailment, so far as the matter of diligence and negligence are concerned, is applicable to executors and administrators (3 Lead. Cas. in Eq. 445); and the administrator was only bound to use ordinary diligence. (Sto. on Bail. §§ 398, 399, 400; Edw. on Bail. 276-7; 2 Kent, 565, 578, 581; 2 Pars. on Cont. 130, 156; Sto. on Bail. § 399.)

CURRIER, Judge, delivered the opinion of the court.

In February, 1866, the Andrew County Court granted letters of administration on the estate of Robt. M. Cowan, deceased, to the defendant Meagher, who executed his bond as administrator, with the other defendants as sureties, for the performance of his duties in that relation. He thereupon assumed charge of the estate, and disposed of so much of it as to realize the sum of $1,807.50. On the 15th day of October following, his letters of administration were revoked, and the plaintiff, Townshend, as public administrator, was put in charge of the estate. This suit is brought upon the administration bond to recover the balance of moneys alleged to remain in the hands of the outgoing administrator.

The answer admits the receipt of the $1,807.50 as charged in the petition, but alleges, in the way of defense, that $1,700 of said money was forcibly stolen and taken from the possession of said Meagher, about the 9th day of September, 1866, by thieves, without his fault or neglect, and which said theft he could not prevent.

The replication puts the allegations in regard to the $1,700 in issue, and upon these issues the trial was had.

On the trial, Meagher was offered as a witness in his own behalf, and was excluded by the court, exception thereto being taken. An exception was also taken to one of the instructions given for the plaintiff, in whose favor the trial resulted.

Going back of the questions at the trial, however, the counsel of the plaintiff has insisted, in this court, that the facts alleged in the answer constitute no defense to the suit; that an administrator can alone be discharged from the obligation of his bond by producing the property or paying over the money that has come to his hands. In support of this view we are referred to a number of authorities, such as The United States v. Prescott et al. (3 How. 578), where the suit was upon the bond of a public officer holding public funds, and where it was held that the obligation of the bond was absolute, and that nothing short of the actual paying over of moneys which came to the possession of the officer would satisfy that obligation.

The obligation of the bond in suit is clearly different from that, for it is well established equity law that, under certain circumstances, executors and administrators are absolved from responsibility, notwithstanding the bond, and notwithstanding the failure to produce the property or pay over its value in money--as where the property has been taken by the public enemy, or has been lost through unavoidable accident, or, in case of animals, where they have perished from disease--no negligence being imputable to the administrator or executor. (2 Williams on Executors, 142, and cases there cited.) The obligation of the bond, therefore, in such cases is not absolute.

The condition of the bond under consideration is that the administrator shall pay over and account for the money and property that should come to his hands, belonging to the estate, as “required by law;” and the question remains, in a case like the present, what does the law require? In Cross v. Smith (7 East. 251), Lord Ellenborough, C. J., holds the following language: “As no case at law has yet decided that an executor, once become fully responsible by actual receipt of a part of the testator's property for due administration, can found his discharge in respect thereof, as against a creditor seeking satisfaction out of a testator's assets, either on the score of inevitable accident--as destruction by fire, loss by robbery, or the like--or reasonable confidence disappointed, or loss by any of the various means which afford excuse to ordinary agents and bailees in case of loss without any negligence on their part; I say, as no such case in respect to executors has yet occurred in a court of law, we are not, from the particular hardship of the present case, authorized to make such a precedent in favor of the defendant.” This was in 1806; and I find no subsequent case, English or American, where such precedent has been established in a court of law.

The rule in equity is different, however, as is shown by a long and uniform course of decision, although but few of them involve the particular question of the loss of money by theft or robbery. In Forman v. Coe (1 Caines, 96), it is assumed that robbery of trust funds in the hands of an executor, in equity, exonerates him from accountability; and that he is, from the necessity of the case, a competent witness in his own behalf. This was a case of robbery, as distinguished from theft, committed by a company of soldiers, on Long Island, in the time of the war of the revolution.

Redfield, in his work on Wills, part 2, p. 881, states the law in regard to the robbery of trust funds thus: “If the trustee is robbed of the trust money without his fault, he is not responsible; and he may, in ordinary cases, exonerate himself by his own oath, as he can not be expected to produce any other proof.” Morley v. Morley, 2 Ch. Cas. 2; Knight v. Lord Plimpton, 3 Atk. 480; and Jones v. Lewis, 2 Ves. 240, are cited as authorities supporting the text.

In the Morley case the defendant was trustee for the plaintiff, an infant, and received for him £40 in gold, of which he was robbed by his own domestic servant, together with £200 of his own money. The Lord Chancellor allowed the trustee this £40 on his own oath. (See 3 Chit. Eq. Dig. 2934.) This would seem to have been a case of theft, technically, although it is spoken of as a robbery. The case in Atkyns does not involve the question of theft or robbery, but a question of care and prudence in remitting funds to London by a court receiver, in bills of exchange.

The facts in the case reported in 2 Vesey were that the administratrix had placed certain goods in the hands of her solicitor, from whom they were stolen. In regard to the case, Lord Chancellor Hardwicke said: “It is certain that if a bailee of goods, against whom there is an action of account at law, loses the goods by robbery, that is a discharge in...