Monell v. Monell

5 Johns. Ch. 283, 1821 N.Y. LEXIS 94, 1821 N.Y. Misc. LEXIS 19

• Court: New York Court of Chancery
• Decided: June 30, 1821
• Status: Published

Opinion

The Chancellor.

The bill is filed by two of the adult, and by three of the infant children of James Monell, deceased, against the defendants, G. Monell and P.Milliken, as guardians, for an account of the real and personal estate.

1. As to the personal estate, the answers admit, that on the 1st of March, 1814, 1459 dollars and 40 cents was received by the defendant G. M, as part of the personal estate, and that each plaintiff was entitled to one-fifth, or 291 dollars and 88 cents. But the answers aver, that the money came to his hands, as administrator, and they admit, that he, with two other persons, were administrators of the personal estate of James Monell, deceased. The answers deny that any part of that money ever came to the possession of the other guardian, P. M. The question on this part" of the case is, whether the defendant P. M. be chargeable with this money, as the defendant G. M. is insolvent, and has been discharged under the insolvent act.

The testimony in contradiction to the averment, that no part of that money ever came to the possession of the defendant P. M., and that it was received by the defendant G. M. in his character of administrator, is derived partly from the answers themselves. The schedule No.. 1, annexed to the answers, is signed by the defendant G. M.t and it admits the receipt of the 14¿-9 dollars and 40 cents, for the plaintiffs, by him, “ as guardian,” and both those defendants pray, that this schedule may be taken as part of their answer; and in schedule No. 2, annexed to the answer, and which they pray to have taken in like manner, the defendants claim a commission of five per cent, on the distribution of the above sum, “ as guardiansand they charge, “ as guardians,” that commission to each plaintiff, for his one-fifth part of that sum, being 291 dollars and 8Ü bents.

We have, likewise, a receipt (exhibit A,) signed by both of those defendants, “ as guardians,” and dated the 24th of May, 1815, in which they acknowledge to have received tif the two other administrators, (John D. Nicoll and Samuel Monell,) 1459 dollars and 40 cents, in full of the dividend due from the estate, oh settlement, to the five plaintiffs.

The acknowledgments contained in the schedules annexed to the answers, and in this receipt, appear to me to place beyond all- doubt the responsibility of the defendant P. M., as one of the guardians, for the mohey so admitted to have been received; and they prove that the pretence in the answer that the money came exclusively to the hands of the defendant G. M., in his character of administrator, is utterly groundless. It is further to be observed, that the defendant P. M. has furnished ho evidence to counteract the inference necessarily resulting from the receipt, that the money came as much into his possession or under his control, as into the possession or under the control of his co-guardian.

2. Those defendants were also appointed guardians by the Court of Common Pleas, in Orange county, on a proceeding in partition and a sale of the real estate of James Monell, deceased; and, in that character, they received for the plaintiffs, 2593 dollars and 50 cents, being the sum of 518 dollárs and 70 cents, for each plaintiff. This money was received on the 6th oí May, 1815, by the defendants, in a mortgage taken by the commissioners appointed by the Court under the proceeding in partition, and assigned to them. The answers state, that the mortgage was drawn by the purchaser, in favour of the defendants, and delivered over to the defendant G. M. But the exhibit C. proves, that the mortgage was taken to, and in the name of the commissioners, for the sum of 4381 dollars and 65 cents, payable in one, two, and three years, and that it bore date the 20th of April, 1815. The proportion coming to the plaintiffs was covered by this larger sum. The mortgage was registered on the 26th oí May, 1815, and was assigned to the defendants, for 3781 dollars and 65 cents; and then it was assigned by the defendant P. M, to the defendant G. M., ori the 7th of February, 1816, and cancelled by the latter, by an acknowledgment of satisfaction, on the I2th of April, 1816. Why did one guardian assign over his right and interest, as a guardian, in the mortgage, to his co-trustee, unless it was to enable the other to collect and appropriate the amount of the mortgage to his own use, as he shortly afterwards did, and then became insolvent ? There is no colour, in law or justice, for the pretence that the defendant P. M. can be exempted from responsibility for the loss of that mortgage debt due to the plaintiff when he thus voluntarily relinquished his interest and possession, as a trustee, to his co-guardian. The presumption is, that he did it to accommodate his companion with the use of the money, for his own private purposes. We have, likewise, in exhibit B., a receipt, signed by the two defendants, “ as guardians’5 for the plaintiffs, dated May 6th, 1815, in which they acknowledge to have received of the commissioners m partition, 2593 dollars and 50 cents, being 518 dollars and 70 cents for each of the plaintiffs.

In short, the proof is decisive, and of the highest character, to show that the defendants were equally and jointly concerned, as guardians, in the receipt and control of the moneys so received for the plaintiffs, both from the reai and personal estate ; and the solvent guardian cannot notv be permitted to shift the. responsibility from himself, and place it exclusively upon his insolvent partner.

Lord Thurlow, in the case of Sadler v. Hobbs, (2 Bro, 114.) took it to be a clear rule, that where by any act, or any agreement of the one party, money gets into the hands of his companion, whether a co-trustee or a co-executor, they shall both be answerable. Where one executor puts money into the hands of his companion, he shows he had it in his power to secure it, and that his companion, for some reason, was permitted to obtain the possession of the money. He referred, among other cases, to that of Gill v. Attorney General, (Hardres, 314.) in which Hale, Ch. B. said, that, if by agreement between two executors, one is to receive and intermeddle with such part of the estate, and another with such a part, each shall be answerable for the whole.

The doctrine in that case perfectly applies to the disposition of the mortgage; and the defendant P. M., “ for some reason” not explained, by a formal act, transfers his interest in and control over the mortgage debt, to his companion, to be by him appropriated, dissipated, and lost.

The joining in the receipt of the personal property, is presumptive evidence that the money came equally into the possession or under the control of both the trustees, and it would require direct and positive proof, to rebut that presumption. Lord Eldon, in Brice v. Stokes, (11 Vesey, 324.) declared, that such a presumption arose from the circumstance of joining in the receipt, and that it was incumbent upon the trustee to destroy the presumption by proof, if he meant to exonerate himself. There is no proof in this case, to counteract the language of the receipts. There is no evidence, out of the joint answer of the defendants, that the moneys did not come to the hands of both of them ; and I apprehend, that the answer is no evidence of such a fact set up in avoidance of, and in contradiction to, the language of the receipt signed by the party himself. And if the money did not, in fact, come to the hands of the defendant P. M., yet if it was paid to his companion, with his assent and direction, he is responsible for the misapplication of it.

“ If a receipt,” according to Lord Redesdale, in Joy v. Campbell, (1 Sch. & Lef. 341.) “be given for the mere purposes of form, then the signing will not charge the person not receiving. But if it be given under circumstances purporting that the money, though not actually received by both executors, was under the controul of both, such a receipt shall charge; and the true question in all those cases seems to have been, whether the money was under the control of both executors : If it was so considered by the person paying the money, then the joining in the receipt by the executors, who did not actually receive it, amounted to a direction to pay his co-executor ,* for it could have no other meaning ; he became responsible for the application of the money, just as if he had received it.” The Chancellor, also, (p. 344.) referred to a MS. case of Cansey v. Barsham and Hayden, decided by Lord Hardwicke, in 1753, in which it was declared, that a trustee was only answerable for what he receives, or applies, but H. had made himself liable by joining in the deed, by which the purchase money was left in the hands of the purchaser, for payment of the legacies. He was responsible for the deficiency of B., (who was in doubtful circumstances,) though he had received none of the assets, because he had joined in the direction to pay.

So in the case oí Brice v. Stokes, already cited, Lord Eldon charged a trustee, though he did not receive the money, under the circumstances, he having joined in the receipt, and permitted his co-trustee to keep and act with the money contrary to the trust. This is precisely the present case.

Lord Alvanley, in Harvey v. Blakeman, (4 Vesey, 596.) took great pains to extract some principle from the cases. He held that one executor in trust was not answerable for the receipts of the other, merely by permitting the other to possess the assets, and by joining in acts necessary to enable him to administer. But if he goes further, and concurs in the application of the assets, he was liable. And from the doctrine in Crosse v. Smith, (7 East, 246.) and in the other cases, which have been referred to, it may be laid down as a principle, that if two guardians or other trustees join in a receipt for moneys, it is prima facie, though not absolutely conclusive, evidence, that the money came to the hands of both; that one trustee may show, by satisfactory proof, that the joining in the receipt was necessary, or merely formal, and that the moneys, in fact, were paid to his companion ; that without such satisfactory proof, he must be liable to the cestui que trust, and that, if the moneys were, in fact, paid to his companion, yet if they were so paid by his act, direction, or agreement, and when be had it in his power to have controlled or secured the money, he is, and ought to be responsible.

If two trustees join in a receipt for money, it is prima facie evidence, that the money came to the hands of both. But if one trustee clearly proves, that his joining in there ceipt was meessary or merely formalt and that the money was, in fact, paid to bis companion, without his direction or con** sent, and it was out of his power to control or secure the money, he will not be responsible.

In the present case, there is not the least shadow of pretence for exempting the defendant P. >/. from answering for the proceeds of the real estate belonging to the plaintiffs who are infants; and the plaintiffs who are adults have been already secured in their proportion of these proceeds, and they do not seek any relief in this suit on that branch of the case. With respect to the proceeds of the personal estate, there is no proof to countervail the inference arising from the receipt and the schedules annexed to (he answer. And if the money did, in fact, go exclusively into the hands of the defendant G. M., the presumption is, (and, as Lord Redesdale observed, the joining in the receipt appears to have no other meaning than this,) that it was paid under the direction of the defendant P. M., and that he voluntarily concurred in such an appropriation of it, when he had the money equally within his own power and control.

The plaintiffs who are adults are, then, entitled tb a decree, for the payment, by the defendants G. M. and P. M., of the 291 dollars and 88 cents, due to each of them respectively, with interest thereon, from the 24th of May, 1815. As to the like sum with interest, due to each of the three infants, and as to the sum of 518 dollars and 70 cents, due to each of the three infants, with interest from the 20th of April, 1815, another question arises. The defendant P. M. is answerable, as guardian, for these sums, and if they were perfectly safe and secure in his hands, he would not, in an ordinary case, be called upon for the money, until the infants came of age. But if the credit of him, or the sureties, is doubtful or precarious, so as to raise great fear as to the ultimate safety of the moneys, it is then the course of the Court, to allow the moneys to be called in, for and on behalf of the infant, or to require better security. In this case, G. M., one of the guardians, has failed, and been suffered by his co-guardian to appropriate and misapply the trust money's. The other guardian remains solvent, with depreciated property, and one of the sureties to the guardianship of the personal estate is worth little or nothing. One of the sureties to the guardianship, respecting the proceeds of the real estate, has failed, and the other is the same surety who, "as I observed before, is worth little or nothing.

Guardians or trustees, mav becaiiod to u<: count by m-fonts, and bn rpcjuired to bri»s the trust moneys into Court, and to ffivu further so curify to nccount, when the '“fonts come of

Under these circumstances, of a complete insolvency of one guardian and one surety, of the very slender and doubtful credit of another surety, of the considerable length of • ° time that the minorities of the plaintiffs will continue, and of the heedless manner in which the only solvent guardian has , suffered his companion to deal with the property, I am of r 1 * v opinion, that the defendant r. M, ought to be required to bring the moneys due to the infant plaintiffs into Court, to be put out under its direction, or to give further and sufficient security, to be approved of by a master, to account for the principal and interest to the infants, when of age.

It is too plain a proposition to stand in need of authorities, (though the counsel for the plaintiffs have cited some to the point,) that the infant ward may come into this Court, by •his next friend, and call his guardian to account, or require him to give better security, if the state of the case should call for it. Lord Redesdale said, in Blake v. Blake, (2 Sch. & Lef. 26.) that according to the modern decisions and present practice, where there are no debts, or the debts are all paid, and no purpose for which money is to be left in the hands of a testamentary guardian and executor, the money is ordered into Court, and laid out for the benefit of the parties concerned.

The following decree was entered :

“It is declared, that the defendant P. M., is responsible, as guardian, for the proceeds of the real and personal estate •of J. il?., deceased, belonging to the plaintiffs, and which may have come to his possession, or under his control, and particularly for which joint receipts of the dates of the 6 th and 24th of May, 1815, were given by him and the defendant G., J\L, as guardians, to the plaintiffs. And it is further declared, that the two plaintiffs who aré adults, are entitled to payment from the said guardians, and from the defendants J. R. B. and P. M., as their sureties, upon their default, of their proportion of the proceeds of the said personal estate. And it is further declared, that the plaintiffs who are infants, are •entitled to call the said guardians to account, touching their respective proportions of the proceeds of the said real and personal estate; and, inasmuch as one of the guardians and one of the sureties given by them, have become insolvent, and the security otherwise impaired, the infant plaintiffs are entitled to have the balance of such proceeds due to them, cither brought into Court, to be put out under its direction, for their benefit, or to have the defendant P. M.,.ihe solvent guardian, give additional and satisfactory real security, to account and pay’, when the infants come of age. It is thereupon ordered, &c. that it be referred to a master, to take and state an account of the amount due to the plaintiffs J. «7. M. and J. M. M., from the defendants G. M. and P. M., as their late guardians, for their proportion of the proceeds of the personal estate, and that on such accounting, the defendant P. M. be charged with their proportion of the proceeds which may have come to his hands or possession, and particularly for which he united in a receipt with the defendant G. M., to two of the administrators of the said estate; and that he be also charged with lawful interest on such proportion of the said proceeds, from the date of such receipt, and be credited for all payments made to those plaintiffs by either of the defendants, and that he be also entitled, on such accounting, to all just allowances, charges, and expenses, as guardian, and properly chargeable to those plaintiffs. And it is further ordered, that the master, also, take and state an account of the moneys due the infant plaintiffs, for the proceeds of the real and personal estate belonging to them, and which may have come to the hands or possession of the defendants G. M. and P. M., or either of them; and that on such accounting, the defendant P. M. be charged with the proportion of the said proceeds, belonging to the said infants, which may have come to his hands or possession, or been subject to his disposition or control, and particularly that he be charged for the amount thereof so due to the said infants, and contained in the said receipts of the 6th and 24th of May, 1815, or either of them; and as and for so much cash received, from the dates of the said receipts respectively, together with lawful interest on the balance so to be found due to the said infants, from the date of the said receipts; and that the said P. M. be credited for all payments and advances (if any) to and for the said infants respectively, made by either of the defendants, and be allowed all just allowances, charges, and expenses, as such guardian, and which may be properly chargeable by him to the said infants. And it is further ordered, that he take and state an account of the amount, value, and competency, of any security, real dr personal, that may be offered by or on behalf of P. M.¡ for the payment of the said balance, with interest, when the said infants shall respectively arrive at full age, together with his opinion touching the solidity and safety of such security ; and that he report thereon with all convenient speed; and the question of costs and all further questions are reserved until the coming in of the report.”