Tarbell v. Jewett

• Citation: 129 Mass. 457
• Parties: Otis J. Tarbell v. Frank J. Jewett
• Decision Date: 27 September 1880
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

129 Mass. 457

Otis J. Tarbell v. Frank J. Jewett

Supreme Court of Massachusetts

September 27, 1880

Argued January 14, 1878; January 12, 1877

Middlesex. Writ of entry to recover a parcel of land in Pepperell. Plea nul disseisin. Trial in this court, before Lord, J., who ruled, as requested by the tenant, that he was entitled to a verdict, which was returned accordingly; and the demandant alleged exceptions. The facts appear in the opinion.

Exceptions overruled.

The case was argued in January 1877, and reargued in January 1878, by J. N. Marshall, (M. L. Hamblet with him,) for the demandant; and by T. H. Sweetser & F. A. Worcester, for the tenant.

OPINION

Endicott J.

To understand fully the ground upon which we rest the decision of this case, it will be necessary to recite such portion of the facts as we deem material.

Abel Jewett died in January 1854, leaving a will, in which his two sons, Otis P. Jewett and Samuel A. Jewett, were named executors. The will was soon after admitted to probate, and the executors were duly qualified, and proceeded to settle the estate. The will devised to these two sons a certain parcel of real estate, subject to certain uses in favor of the testator's widow during her life, and also to an annuity to her. Otis P. Jewett conveyed his half of this estate to his brother, Samuel A. Jewett, by deeds dated September 2, 1854, and January 19, 1858; and in December 1858 Samuel died, leaving as his sole heir at law Franklin J. Jewett, the tenant, who has since continued in possession of the whole estate, subject during the life of the widow who died in 1873, to the uses and annuity named in the will. Otis P. Jewett continued to hold the office of executor until October 27, 1863, when he resigned, and Samuel Parker was appointed administrator of the estate with the will annexed. At the time of the death of Abel Jewett, he was the guardian of the minor children of F. F. Parker, deceased, and held the note of Otis P. Jewett, dated May 1, 1853, and payable on demand to his order, as guardian of these minor children, upon which $ 2500 and interest was due. The note was never indorsed. After his death, his son Samuel A. Jewett was appointed guardian of the minors, as successor to his father, and among the effects which came into his hands as belonging to the minors was this note. The note of one executor payable to the testator and due to the estate thus came into the hands of Samuel A. Jewett, who was acting in the double capacity of co-executor under his father's will, and guardian of the minors whose money had been invested in the note. Several payments are indorsed on the note, made between May 1 and November 9, 1854, leaving a considerable balance due thereon. By whom these payments were made, or in what capacity Samuel A. Jewett received them does not appear in terms; but it is to be presumed that they were made by Otis P. Jewett, the maker, who thus acknowledged his liability upon the note; and as the report finds that neither the note, nor any balance due thereon, was inventoried or accounted for by the executors, we may assume that Samuel A. Jewett intended to receive the payments as guardian of his wards. No other payments were made thereon during the lifetime of Samuel A. Jewett. Upon his death in 1858, Henry A. Parker was appointed guardian in his stead, and he refused to receive the note "as the property of his wards, on the ground that the lending of the money for which it was given was an improper investment." He therefore looked to the estate of Abel Jewett, of which Otis P. Jewett, the maker of the note, was the surviving executor, for the payment of the sum due him as guardian; but although Otis P. Jewett continued to act as executor for the ensuing six years, no payment was made to the new guardian. Immediately after the appointment of Samuel Parker as administrator with the will annexed, in October 1863, he brought an action against Otis P. Jewett to recover the balance due on the note, and judgment was obtained and execution issued thereon in February 1864. Whether Samuel Parker received from Otis P. Jewett any other assets belonging to the estate of Abel Jewett does not appear.

Upon the execution thus obtained, the undivided half of the real estate, conveyed by Otis P. Jewett to his brother Samuel, was duly set off to Parker, as administrator, in March 1864, Parker contending, as the demandant now contends, that the deeds to Samuel A. Jewett were given and received to defeat, delay and defraud the creditors of Otis P. Jewett. No other proceedings appear to have been had until 1874, when, upon a writ of scire facias sued out by Parker, the previous levy was set aside, and another execution issued, which was returned in no part satisfied. Thereupon Parker, in his capacity as administrator, brought an action on the judgment, and caused to be attached the undivided half of the real estate before referred to, the record title thereto standing in the name of Samuel A. Jewett, deceased, of whom the tenant was the sole heir at law. Judgment having been entered, and execution having issued, the undivided half, so attached on the writ, was seized and sold by public auction, and duly conveyed to the demandant.

It is to be observed that the demandant's case rests solely on the judgment finally obtained and the levy last made in the suit originally brought by Samuel Parker, administrator, against Otis P. Jewett, upon the note given by him to his father as guardian. The tenant was not a party or privy to that suit, and is not concluded by the judgment; but may show that the note upon which it was founded was not a valid debt, or was paid, or that the administrator with the will annexed could not maintain an action upon it against the maker, who had been executor of the estate. See Downs v. Fuller, 2 Met. 135; Inman v. Mead, 97 Mass. 310; Peterson v. Farnum, 121 Mass. 476.

The tenant, among other defences, contends that the note was not a valid subsisting note in the hands of Samuel Parker, administrator, but had been paid by operation of law, the maker of the note having been the duly qualified and acting executor of the estate; on the familiar principle that, when a creditor appoints his debtor his executor, the law presumes that to have been done by the executor which it was his duty to do, and that the sum due on the note had become assets of the estate. In other words, that the estate of Abel Jewett was liable to the wards or their guardian for the amount thus invested in the note, and for that amount the executor, Otis P. Jewett, was indebted to the estate. And as no action could have been brought on the note by the original executors, so no action can be brought upon it by the administrator with the will annexed.

The cases are numerous in which this court has recognized and enforced this general doctrine. Stevens v. Gaylord, 11 Mass. 256. Winship v. Bass, 12 Mass. 198. Hobart v. Stone, 10 Pick. 215. Ipswich Manuf. Co. v. Story, 5 Met. 310. Sigourney v. Wetherell, 6 Met. 553. Leland v. Felton, 1 Allen 531. Tarbell v. Parker, 101 Mass. 165. Chapin v. Waters, 110 Mass. 195. Hazelton v. Valentine, 113 Mass. 472, 481. Choate v. Arrington, 116 Mass. 552. See also Benchley v. Chapin, 10 Cush. 173. Mattoon v. Cowing, 13 Gray 387. Commonwealth v. Gould, 118 Mass. 300.

It is very clear that the new guardian could properly refuse to receive the note as the property of his wards, and was not bound to rely solely on Otis P. Jewett for payment of the debt. He could not properly take it, if Otis P. Jewett was not responsible, or if the security was doubtful; and as Otis P. Jewett had made no payment thereon between November 1854 and 1858, it was the duty of the new guardian to look to the estate of Abel Jewett, of which the maker of the note was then, and continued to be for five years after, the surviving executor, for the payment of the amount due his wards. Even if Samuel A. Jewett, who was both executor and guardian, had in his lifetime elected or attempted to treat this note as the property of his wards, and not as assets of the estate of Abel Jewett, the new guardian was not bound to do so. The note was simply a contract between Abel Jewett and Otis P. Jewett, and the description of Abel Jewett therein as guardian was merely descriptio personce, and did not change the character of the contract, or the relations of the parties thereto. It is true this description disclosed the fact that the guardian had lent the money of his wards to the maker of the note, and if there had been any value in the note, as a security or investment, the new guardian could have availed himself of it; but he was not restricted to that course, and he could call upon the estate for the whole sum due. See Burgess v. Keyes, 108 Mass. 43; Hicks v. Chapman, 10 Allen 463, 465; Tarbell v. Parker, 101 Mass. 165.

The note therefore became assets of the estate, from which the liability of the estate to the guardian could properly be met, and it is immaterial that it was not named in the inventory or accounts.

In Winship v. Bass, 12 Mass. 198, the executor refused to treat as assets his indebtedness to the estate, on the ground that it was extinguished by his appointment as executor. The court was of opinion that it was not extinguished, but decided not to remove him from his office because, "as he must be supposed actually to have received, for the purposes of his trust, a debt due from himself, so that he and his sureties will be responsible on their bond for such debt, the interest of the estate may require that such security may be preserved by continuing the executor in office." The executor's bond is intended to secure the estate, not merely in regard to those assets which are named in the inventory or...