Wood's Adm'R. &C. v. Nelson's ex'R &C

• Decision Date: 07 June 1850
• Court: Kentucky Court of Appeals
• Parties: Wood's Administrator, &c. <I>vs</I> Nelson's Executor, &c.

49 Ky. 229

Wood's Administrator, &c. vs Nelson's Executor, &c.

Court of Appeals of Kentucky.

June 7, 1850.

ERROR TO THE ESTILL CIRCUIT.

CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

THIS case comes up now upon a decree adjusting the accounts between the estate of James Woods, deceased, of which John Woods is administrator, and J. Nelson, who acted as executor under the supposed will of James Woods, which has been annulled, and who is now represented by Chambers, his executor; and also settling the accounts between said estate and Fielding Woods, &c. also between said estate and the present administrator, J. Woods, and after decreeing payment of the balances in the two first accounts, distributing the estate of the decedent, James Woods, among his distributees.

J. Woods, the administrator and others, complainants with him in the original bill, assign errors in the decree upon each of these subjects, which will be presently noticed. The defendants in error plead in bar the affirmance of a former decree between the same parties, as reported in 9 B. Monroe, 600. But the defendants reply, and on inspection of the former opinion and record, it appears to be the fact that the matters finally disposed of by the decree now before us, were, by the former decree, referred to a commissioner under interlocutory orders, and were not involved in the affirmance. The plea, therefore, is no bar to the present writ of error.

We proceed to notice the objections to the several branches of the present decree in the order in which they have been already mentioned, referring to the former opinion for a general statement of the facts and for the principles then settled.

1. The present decree is erroneous in not charging Nelsons's estate with $700 instead of $625, on account of the two slaves sold by him under a clause of the supposed will. This item is explained in the former opinion, which intimates the propriety of charging the $700. The credit for $125 paid to F. Woods as his portion of the price of said slaves was properly given in the decree to Nelson's executor, because, although F. Woods was not entitled to it under the will as supposed, yet as he was a creditor of James Woods' estate, said sum should operate as a credit on his claim, and being thus available to that estate, should be credited to Nelson, the executor, who is charged with the entire sum of $700, and in fact with the whole estate that came to his hands.

But we are of opinion that Nelson's estate should be charged with interest on the balance in his hands from the filing of the present bill, which was a very short time after the supposed will was set aside, and after administration was granted to J. Woods. At that time Nelson was no longer executor, and it was his duty to pay over to the administrator the assets remaining in his hands. And not being further responsible for debts if any, due by the estate, no refunding bond was necessary. As he will obtain credits for all proper payments, the balance against him constituted a fund due immediately to the lawful administrator. Such part of it as actually remained in his hands, he unjustly detained, though demanded by this suit, and for such part as was wrongfully paid over to the supposed devisees, together, with the interest thereon, he held an indemnity which has, in part, been decreed, including interest. Thus, upon a considerable portion of the fund, his estate makes interest by the decree, while it is charged with none.

We are also of opinion that Chambers, as executor of Nelson, is not entitled to charge the estate of Woods for his services as executor. His testator who died in the progress of this suit, was never a rightful executor, and at his death had no pretence of being so, but was simply the debtor of J. Woods' estate; and Chambers, as his executor, has no more right to charge that estate for his trouble in accounting or in paying over the assets, belonging to it, than to charge any other creditor or claimant for similar acts. His services, as executor, were rendered to the estate of his testator, Nelson, and are chargeable against it, not against the creditor.

Upon the question whether Nelson was entitled to commission or compensation for his services and expenses, the former decree directed, in substance, that so far as these were serviceable to the estate the allowance should be made, and this Court intimated its approbation of the principle; but the allowance not having been then made, its proper extent or measure was not finally determined. The principle is that as far as the acts of the temporary executor were useful and available to the estate, he should be compensated. So far as he collected and disbursed the fund for the...