Kemp v. Estate of Brock

119 A. 396, 96 Vt. 347, 1923 Vt. LEXIS 174

• Court: Supreme Court of Vermont
• Decided: January 15, 1923
• Status: Published

Opinion

Miles, J.

This is an appeal from the probate court to the county court upon the disallowance of a claim against the estate of James W. Brock, as surety on a probate bond of one Christopher C. Putnam, Jr., executor of the last will and testament of his father, Christopher C. Putnam, Sr. The case was tried by the county court where judgment was rendered for the plaintiff as a contingent claim. To this judgment both parties excepted, the plaintiff on the ground that it should have been an absolute judgment without any contingency, and the defendant on the ground that no judgment should have been rendered against! the defendant, but should have been rendered in its favor.

The court erred in rendering a judgment as a contingent claim. If the defendant was at all liable, the liability was direct; for, if there were a breach of the executor’s bond, Brock’s liability did not depend upon some future event. In that case he stood directly charged upon the bond. A contingent claim under the statute is one that cannot be proved as a debt before the commissioners nor allowed by them, because the liability is dependent upon some future event that may or may not happen. Brown’s Executors v. Dunn’s Estate, 75 Vt. 264, 55 Atl. 364. The judgment should have been without contingency for either the plaintiff or defendant, and the question is: For which should it have been, each party claiming that it should have been in his or its favor?

The court found that Christopher C. Putnam, Sr., deceased leaving a will in which Christopher C. Putnam, Jr., was named executor. The will, among other things, provided as follows: “I give and bequeath to Christopher C. Putnam, Jr., in trust the sum of ten thousand dollars, and if it be necessary in order to constitute said trust fund to convert any of my real estate into personalty, I devise to Christopher C. Putnam, Jr., sufficient of my real estate in trust with power of salé to make up said fund of ten thousand dollars in trust; and, if in the judgment of the trustee it is as well to constitute a part of said ten thousand dollar trust fund of realty now owned by me I devise to him in trust (but always with power of sale) real estate to the amount necessary to make the trust property set aside amount to ten thousand dollars; and this gift, devise and bequest of ten thousand dollars is upon the following trust: 1st, to pay the income and interest arising therefrom yearly to or in and for the care of my daughter, Harriet, during her natural life; 2nd, to pay such part of the principal sum to or in and for the care of my daughter, said Harriet, from time to time as her proper care and her comfort shall reasonably demand.”

The father and son, at the time of the death of the father, were partners, each owning an equal and undivided one-half interest in the partnership property. From the inventory of the property coming into the hands of Christopher C., Jr., it appears that the entire estate of the testator consisted of his interest in this partnership property.

On March 30, 1899, Christopher C., Jr., shortly after his father’s death, duly qualified as executor of the will by filing a bond, as required by law and the order of the probate court, and James W. Brock, against whose estate the plaintiff’s claim is prosecuted, became surety on that bond. Thereupon Christopher C., Jr., entered upon the administration of his father’s estate. He had the entire partnership property inventoried as belonging to the estate of Christopher C. Putnam, Sr., and the same so remained until October 11, 1913, when the executor for the first-time settled his account. Upon that settlement he charged himself with one-half of the partnership property and with $10,258.96, as the income received from gain on personal property sold belonging to the testator’s estate, in all amounting to $40,689.00. Against this sum he credited himself with funeral expenses, costs of administration, erection of a mounment provided for in the will, payment of debts against the estate, payment of taxes and insurance, payment of the two legacies of one hundred dollars each, and ten thousand dollars set aside as a trust fund for the testator’s daughter, Harriet. This left in his hands, at the time of the settlement of his account, $29,853.00 available assets belonging to the testator’s estate. This amount was made up of $10,000.00 of personal property and $19,853.00 of real estate. This appears, not only from the account' itself, but also from the express findings that- at that time the estate had sufficient funds to cover the trust; the term “funds” being manifestly used in the usual commercial sense, as meaning money, stocks, bonds, securities, etc. United States v. Greve (D. C.), 65 Fed. 488; Hasbrook v. Palmer, 11 Fed. Cas. 766; Ayers v. Lawrence, 59 N. Y. 192; Galena Ins. Co. v. Cupfer, 28 Ill. 332, 81 A. D. 284; Hatch v. First National Bank, 94 Me. 348, 47 Atl. 908, 80 A. S. R. 401.

Immediately following that settlement he filed a bond, to the satisfaction of the probate court, for the faithful performance of his duties as trustee. But having held this fund in the first instance as executor, in order to invest himself with title to it as trustee, it was necessary for him to do some act, in addition to the filing of such bond, from which it can be fairly inferred that he had elected to hold the fund in the latter character. Story’s Admr. v. Hall, 86 Vt. 31, 83 Atl. 653, 40 L. R. A. (N. S.) 1136, Ann. Cas. 1915B, 1187. That he so elected fairly appears from the record that when he filed his bond as trustee he charged himself with the trust fund under that character, and thereafter, as seen from his itemized account as trustee, filed December 1, 1913, and finally settled September 14, 1918, the probate court then finding in his hands belonging to the trust fund, the sum of $8,911.38. His course of action with reference to such fund, was. appropriate to his character of trustee, in which it was his duty under the will to hold it, and inappropriate •to his character of executor. When he charged the trust fund to himself as trustee, his liability for it in that character became perfected, and consequently the surety on his bond as executor was relieved from liability for any subsequent default of duty, if such there be, in connection with that fund. In re Scott’s Account, 36 Vt. 297. Whether there was any such default by him as trustee, and consequent liability on his bond in that character, we have no occasion to inquire, nor need we inquire, as to the existence of any lien on the property which passed into the hands or possession of the trustee in bankruptcy, in favor of the cestui qui trust, or of the trust fund.

The plaintiff, however, contends that the condition of the executor’s bond was broken before Christopher C., Jr., elected to hold the fund as trustee, by failure to set the fund aside, and by the false statement in his final account as executor, that he had set it aside. But neither of these contentions is sustainable. As to the first, we may assume that in the circumstances shown by the record, and under the law as laid down in the case of In re Scott’s Account, cited above, Christopher C., Jr., as.executor, might have transferred the trust fund to himself as trustee, without a prior order therefor from, the probate court, yet such a transfer would have been voluntary, and one in law he was not obliged to make. Besides, by the express provisions of the will the fund was to be set aside by him as trustee.

As to the second, he followed' the usual practice in the settlement of estates. He credited himself with the amount to be paid on the trust legacy under the'decree of distribution. But the mere act of crediting himself as executor with the amount found to be due and unpaid on that legacy was not evidence, nor a representation, that it had in fact been paid to the one entitled thereto as trustee. Probate Court v. Vanduzer, 13 Vt. 135. As claimed by the defendant, the executor could not be sued for non-payment of the trust legacy until his liability had been determined by a decree of the probate court (Davis v. Flint’s Estate, 67 Vt. 485, 32 Atl. 473; Probate Court v. Kimball, 42 Vt. 320); but the settlement of the executor’s account in this ease, amounted and was equivalent to such a decree. Probate Court v. Vanduzer, supra.

Judgment reversed and judgment for defendant to recover its costs. To be certified to the probate court.