Wood's Adm'r v. Nelson's Ex'r

• Decision Date: 07 June 1850
• Citation: 49 Ky. 229
• Parties: Wood's Administrator, & c. v. Nelson's Executor, & c.
• Court: Kentucky Court of Appeals

49 Ky. 229

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

Court of Appeals of Kentucky.

June 7, 1850

Executors and Administrators. Wills.

ERROR TO THE ESTILL CIRCUIT.

Turner for plaintiff.

Caperton for defendant.

OPINION

MARSHALL CHIEF JUSTICE.

The case stated

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 Nelson'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 Fielding Woods as his portion of the price of said slaves was properly given in the decree to Nelson's executor, because, although Fielding 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.

An executor paid to one as a supposed legatee under a will which was subsequently vacated, in a settlement with the administrator he should be credited by the sum so paid where the supposed legatee was a creditor of the estate to that amount.

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 farther 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.

An executor who holds funds of his supposed testator is bound for interest upon money in his hands to the administrator upon the will under which he had collected the funds, at least from the time of bill filed for an account, and no refunding bond is necessary. Such executor should be paid for his services so far as they were serviceable.

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.

An executor of such an executor should not be paid for his services where the will was vacated and the first executor died during the pendency of the suit for vacation, though he may charge the estate of his testator....