Gerald v. Bunkley

17 Ala. 170

Opinion

DARGAN, C. J.

It is the duty of an administrator or other trustee to defend the trust estate from all unjust demands made against it, and he should employ the proper and reasonable means to make the defence effectual. As this is the duty of a trustee, it follows that the necessary and reasonable expenses incident to the litigation must be borne by the trust estate, and not by the trustee in his in dividual capacity. — Coopwood et al. v. Wallace, 12 Ala. 790; 15 Ala. 335. This position will not be denied, and the only question that can be made in regard to the expenses paid by Mrs. Gerald in prosecuting Barber, is, that they were unnecessary or unreasonable. We are, however, fully satisfied from the facts exhibited by the record, that the prosecution and conviction of Barber for falsely pensonating Jesse Bunkley and demanding the property that had been paid over to William Bunkley by Parish, the guardian of Jesse, on the supposition of his death, was the only mode of defence that could have been adopted to save the estate of William Bunkley. After Barber had succeeded in the village where Jesse Bunkley was raised in creating the belief that he was Jesse Bunkley, even in the minds of those who had known Bunkley from his youth, had he been permitted to leave the State and to prosecute his demand by an attorney, wo do not see how he could have failed of success. To procure the proof that he' was Elijah Barber, and not Jesse Bunkley, was therefore indispensably necessary. This could only be done by bringing him in the presence of those who knew him to be Elijah Barber. It was therefore necessary to arrest him to prevent his' leaving the State, that the witnesses might see and inspect him and thus be enabled to speak with certainty who he was. Evén on the trial of the indictment, we infer from the facts stated in the record, that it was doubtful whether the evidence would show him to be Elijah Barber or Jesse Bunkley, for many of the acquaintances and friends Bunkley deposed that he was Jesse Bunkley, and this too after they had had a full opportunity to examine and interrogate him. Under such circumstances the administratrix pursued the only course that could have been adopted to protect the estate from the unjust demand of Barber, and consequently the estate must bear all the reasonable expenses of the prosecution. Whether the amount paid by the administratrix was reasonable, we do not feel at liberty to determine in the present condition of the cause, for it does not appear that the Orphans’ Court has ever acted on this question, but simply rejected the whole item on the ground that the estate was not liable to pay any part of it. In this the court erred; the administratrix was entitled to a credit for the amount she had paid out, if such amount under all the circumstances •was reasonable, of which it was the duty of the court to judge,

2. Mrs. Gerald, the administratrix, obtained an order of the court to retain the personal estate together for ten years, and also to retain the possession of the real estate. She employed the slaves in cultivating the land for the benefit of the distributees. It became necessary to build negro houses and also a gin house, as those left by the deceased had become rotten and dilapidated; she asked to be allowed the reasonable expenses incurred in erecting those buildings, which was refused. It is true that at common law an administrator could not claim to be remunerated for expenses-in building houses on the estate of the deceased, but the powers of an administrator at common law and under our statutes are in many instances widely different. In this State, upon good cause shown, an administrator may be allowed to keep the personal estate together and to retain the possession and cultivate the land for the term of ten years, reserving the widow her right of dower. — Clay’s Dig. 19S-’99. When the administrator has obtained such an order it becomes his duty to manage the estate in a husband-like manner. He should conduct the estate to the best advantage for the interest of the distributees, and should observe the same care and diligence in the management of it that a prudent man would observe in reference to his own. Not only common prudence but common humanity demands of the master that he should provide suitable houses for his slaves, and a gin house is absolutely necessary to a cotton plantation. An administrator who has obtained the right to keep the estate together for the space of ten years, must therefore be allowed the expenses of such buildings, when necessarily erected by him.

3. It also appears that Mrs. Gerald without any order of court lent to Whitman & Hubbard $3210, taking their note with J. Wyman .for security. Whitman & Hubbard as well as Wyman were merchants then in good credit, but afterwards failed, and the debt is lost. The money lent belonged to the estate, and she asks a credit of this sum in the settlement of her accounts. In the case of Dean & Wife v. Rathburne, adm, 15 Ala. 328, we said that the correct rule to be extracted from all the cases is this: If an executor or other trustee exercises good faith and ordinary diligence, and acts within the scope and in the line of his duty, he is not responsible although loss befall the estate. If, however, he assumes to act without the scope of his authority and beyond the line of his duty, he then acts upon his own responsibility and must be held responsible for any loss that may befall the estate from such acts. We think the rule recognised in the case refered to is correct in principle, and that it is sustained by authority. — See Bond v. Clough, 3 Mylne & Craig. 486. The first question therefore to be ascertained is, did the administratrix act within the scope of her authority and in the line of her duty in lending the money to Whitman & Hubbard? We know of no principle of law that makes it the duty of an administrator to lend out the money of the estate. In the case of Webb v. Conn, (Littell’s Sel. Cases,) it is said that an administrator is not required by any law to lend out the money of the estate he represents, and therefore is not chargeable with interest, by merely showing that the money could have been loaned at interest without inconvenience. To the same effect is the case of Kellar, ex’r, v. Bula, 5 Monro, 578 — also see Karr v. Karr, 6 Dana, 3; The State v. Johnson, 7 Blackf, 529; and 1 Vernon, 197; 2 Ver. 548. As the law does not require of an administrator who has only such authority over the estate as is derived from his letters of administration, to lend out the money, if he assumes the authority to do it, he cannot be said to be acting within the scope of his authority or in the line of his duty, but must be considered as acting upon his own responsibility, and must be held liable for both principal and interest, for it is well settled that if an executor or other trustee uses the money of the trust estate, he is chargeable with interest, and that he may have applied it to an unprofitable use cannot change the rule or exempt him from paying interest. Mrs. Gerald was therefore properly charged with both the principal and interest of the sum loaned by her to Whitman & Hubbard. Whether or not an administrator in this State may not apply to a court of chancery or to the Orphans’ Court and obtain authority to lend out the money in his hands belonging to the estate, tve will not stop to enquire, being satisfied that if he assumes to lend it out relying on his authority as administrator alone, it may be considered by the distributees and those interested in the estate as a conversion of the money to his own use, and that he may be charged with both principal and interest, whether the money be lost or not.

4. It was also shown that the intestate did not leave land sufficient to employ his force as profitably as it might have been, and that the administratrix purchased with the money of the estate two tracts or parcels of land which have been cultivated by the slaves, and which appear to have been of considerable value' to it. The administratrix requested that she should be allowed a credit for the amount she paid for the lands, which was also refused. She then requested a credit to the extent of the value of the rents of the land, which was also refused, and the court charged her with the money she - paid for the land with interest thereon, without making her any allowance for the use or profits of the land. That the court erred in charging her with the amount paid for the land with interest, without making any allowance for the use of the land by way of rent, is manifest. But I have had much difficulty in coming to a conclusion what course the Orphans’ Court should have pursued in reference to this question. As the lands were purchased with the funds of the estate, the infant distributee has an unquestionable right to elect whether he will take the land or whether he will claim the money. He certainly is not entitled to both, but he has the right to choose between the land and the money. Can the Orphans’ Court elect for him and order a conveyance during his minority? The Orphans’ Court has full jurisdiction, it is true, to make final settlements of estates in the hands of executors and administrators, and to decree the amount ascertained to be due to be paid to those entitled, but it has no jurisdiction to establish a resulting trust in favor of the distributees, nor to order the executor or administrator to convey to them lands purchased with the assets of the estate. No such jurisdiction is confered on those courts by statute, and therefore they do not possess it. They can exercise only such authority and are possessed of only such jurisdiction as is confered upon them by statute. But the conversion of the money by the administratrix into land cannot deprive the Orphans’ Court of jurisdiction to order and decree a final settlement of the estate. This power the Court' has, and the administrator cannot oust the court of jurisdiction by a conversion of the assets. Mrs. Gerald was therefore correctly charged with the amount of money paid for the land with interest thereon. But as the estate has been benefited by the use of the land, she should have been allowed a credit to the extent of a reasonable rent for the land, for inasmuch as the distributee is not entitled to both the land and the money, lie-cannot claim both the interest on the money and the use of the land. We admit that a settlement made in conformity with this view will, as between the administratrix and the distributee, leave in the latter the right to elect whether he will not take the land in the stead of the money; and he may still file his bill in equity for the purpose of having the land decreed to be his and to compel a conveyance to be made to him, and it is a question well worthy of consideration whether the administratrix cannot resort to equity to compel him either to accept the land or to renounce his right to elect whether he will take it or not. Be this as it may, we are satisfied that a court of equity alone has the power to adjudicate this question, and that the Orphans’ Court has not the jurisdiction to follow the assets of an estate that may have been invested in property and to establish a trust in favor of the distributees.

The view we have taken of the land applies also to the slaves purchased by Mrs. Gerald. The court should have charged her with the amount paid for them with interest thereon, and given her a reasonable credit for the services they rendered the estate, for we can perceive no difference in this respect between the purchase of land and slaves.

In reference to the carriage purchased by Mrs. Gerald and the expenses incurred at the taverns, from time to time, we think they do not form a proper charge against the estate, and must be borne by her alone. If she could show that she visited Montgomery for the purpose of attending to the business of the estate, and that it required her to remain in town for a specified time, we would not say that her reasonable expenses for the time she was required to stay on account of the business of the estate should fiot be allowed her; but if her remaining in Montgomery was connected with her own pleasure, or to avoid the loneliness of a country life, she must bear the expenses.

Let the decree be reversed and the cause remanded for further proceeding.